WMU-Cooley Law Review - Volume 31, Number 3

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

James W. Butler III Scott A. Dienes W. Anthony Jenkins Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F.Suhrheinrich

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT Honorable Thomas E. Brennan DEANS AND PROFESSORS EMERITI Michael P. Cox Keith J. Hey Robert E. Krinock (Deceased) DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

Kathy Swedlow Assistant Dean and Professor of Law

James B. Thelen Associate Dean of Legal Affairs & General Counsel

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Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Erika Breitfeld Paul Carrier Lisa DeMoss Gerald Fisher Karen Fultz Katherine Gustafson Barbara Kalinowski Joni Larson Daniel W. Matthews Michael K. Molitor John Nussbaumer Devin Schindler Paul Sorensen Kathy Swedlow Christopher Trudeau Kara Zech Thelen

Gary Bauer Tammy Brown Asher Bradley Charles Renalia Dubose Anthony Flores Heather Garretson Christopher Hastings Linda Kisabeth Gerald MacDonald Michael McDaniel Martha Moore Kimberly O’Leary John N. Scott Stevie J. Swanson David Tarrien Gerald Tschura

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Brendan Beery Jeanette Buttrey Mark Cooney David Finnegan Dustin Foster Marjorie Gell Richard C. Henke Tonya Krause-Phelan Mable Martin-Scott Marla Mitchell-Cichon Monica Nuckolls Lauren Rousseau Dan Sheaffer Jeffrey Swartz Patrick Tolan Victoria Vuletich

THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2014 BOARD OF EDITORS Jared Schultz Editor-in-Chief Michael Taylor Managing Editor

Rabih Hamawi Symposium Editor

Melissa Gilchrist Interim Managing Editor

Charlynn Turner Interim Symposium Editor

Matthew Elzinga Articles Editor

Greg Masters Subcite Editor

Michelle Easter Solicitation Editor

Cathy Carson Administrator Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Nemer Baki Channa Beard Daron Berman Stephanie Carlisle Lauren Frieder Erin Haney Ken Kharha

James Klinedinst Jacqueline Langwith Andrew Linke Mark Messerschmidt Candis Najor Sumayya Saleh Scott Sawyer

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Joe Shada Jerrod Simpson Jessica Stark Stephanie Strycharz Brandon Thomson RaShaunda Weaver Qiong Zhao

SENIOR ASSOCIATE EDITORS Minyon Bolton Callana Davis Ben Lesnick

Sarah Miller Alec Ohryn Joshua Pugliesi

Rebecca Siegel Elizabeth Spiridon Craig Dickinson

ASSOCIATE EDITORS Aaron Cook Melissa Inchauste Jenn Jager

Rose Kleff Scott Miller

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Taneashia Morrell Jordan Wilson

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Suhreinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cristine Rosekrans Law Review Administrator

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Michaelmas 2014 Recipients: Callana Davis EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Michaelmas 2014 Recipients: Candis Najor, Stephanie McGuire, Sumayyah Saleh DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Michaelmas 2014 Recipient: Rabih Hamawi

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TH HOMAS M. COOLEY L LAW R REVIEW W HILA ARY 20115 BOARD OF EDIT TORS Jarred Schultz Ediitor-in-Chief Grreg Masters Interim Editor-in-Ch hief Melissaa Gilchrist Manag ging Editor

C Charlynn Turnner Sym mposium Edittor

Rachel Sexton Subcitee Editor

M Matthew Elzinnga Articles Edittor

Michellle Easter Solicita ation Editor

Willliam Bellor-Y Yeh IInterim Articles Edittor

Elizabeeth Devolder Interim m Solicitation Ediitor

D Dawn Beachnnau Addministrator ((In Memoriam)

ASSISTA ANT EDITORS Angie Bailey Nemerr Baki Debra Berg-Simon Kevin Berkowitz Daron Berman Alison n Center Tayceee Friar Lauren n Frieder

Saarah Grodek Erin E Haney Ken K Kharha James Klinedinstt Mark Messerschmiidt Sccott Miller Caandis Najor Sum mayya Saleh

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Scott Sawyyer JJerrod Simpson Cristina Soolis Sttephanie Wevver Holllianne Willekkes Qiong Zhhao

SE ENIOR ASS SOCIATE E EDITORS Minyon n Bolton Melissaa Inchauste Jenn Jag ger

Rosse Kleff Ben Lesnick

Tanneashia Morreell Jordan Wilsoon

ASSOCIIATE EDIT TORS Dalton Carty C Tiffany Cerniglio Andrew w Doezma

Sarrah Harris Calleb Loomis

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Nick Saato Kristi Triggg

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Suhreinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hilary 2015 Recipients: Ben Lesnick EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hilary 2015 Recipients: Mark Messerschmidt, Jerrod Simpson DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Hilary 2015 Recipient: Matthew Elzinga

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Contents

Volume 31

2014

Issue 3

From the Editor ............................................................................ xiii Articles Social-Media Discovery: It’s a Matter of Proportion Jonathan E. Moore .................................................................. 403 Keeping the Balance True: Proof Requirements for Confrontation Forfeiture by Wrongdoing Tim Donaldson ......................................................................... 429 Judicial Responses to Challenges to Firearms-Identification Evidence: A Need for New Judicial Perspectives on Finality Sarah Lucy Cooper ................................................................... 457 Comment When Fear Meets Reality: How the Prosecution of Bradley Manning Was Not an Assault on the First Amendment Jordan A. Wilson ...................................................................... 489

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FROM THE EDITOR The Thomas M. Cooley Law Review is pleased to bring you the third issue of Volume 31.

This issue includes a variety of exciting topics from a group of authors with a variety of experience. The first article discusses an important legal issue as technology use becomes rampant: socialmedia discovery. The next two articles discuss evidentiary concerns in criminal trials. The first highlights the forfeiture-by-wrongdoing doctrine and what burden of proof is required for the doctrine to apply. The second focuses on firearms-identification evidence and encourages appellate judges to rethink their reliance on finality when they interpret this evidence. Finally, this issue contains a studentwritten piece discussing the First Amendment issues involved with Bradley Manning’s WikiLeaks trial.

The variety of topics and unique perspectives of each article provided an incredible editing experience. We hope you equally enjoy reading this issue.

We would also like to note that this will be the final issue of our publication with the title Thomas M. Cooley Law Review. In August of 2014, the law school finalized an affiliation agreement with Western Michigan University and is now known as the Western Michigan University Thomas M. Cooley Law School. Beginning with our next volume, our publication will be titled the Western Michigan University Thomas M. Cooley Law Review. Under this new affiliation, we will continue to bring the legal community relevant, informative, and innovative scholarly publications.

— Jared Schultz

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SOCIAL-MEDIA DISCOVERY: IT’S A MATTER OF PROPORTION JONATHAN E. MOORE*

TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 404 II. THE FEATURES AND FUNCTIONS OF SOCIAL MEDIA ..................... 405 III: COURTS’ MANAGEMENT OF SOCIAL-MEDIA DISCOVERY ........... 407 A. Privacy in Social Media ................................................... 408 B. Discovery is Limited to Relevant Social Media ................ 409 IV: PROPORTIONALITY ON THE RISE ................................................ 413 A. Proportionality: Weighing the Burdens Against the Benefits ............................................................................ 414 B. The Recent Push to Increase Courts’ Use of Proportionality ...................................................................... 415 V: USING PROPORTIONALITY TO MANAGE SOCIAL-MEDIA DISCOVERY ................................................................................... 416 A. Proportionality Provides the Proper Framework for Managing Social-Media Discovery ................................. 417 B. Courts Can Consider Nonmonetary Burdens under Proportionality ............................................................ 418 1. Privacy ........................................................................ 419 2. Accuracy ..................................................................... 423 3. Chilling Effect ............................................................ 425 C. Remaining Uncertainties .................................................. 426 VI. CONCLUSION .............................................................................. 427

* Jonathan E. Moore is a partner at Warner, Norcross, & Judd in Grand Rapids, Michigan. Mr. Moore is an experienced litigator who has worked on commercial litigation, securities, corporate governance litigation and electronic discovery. He has written extensively about eDiscovery issues for legal and mainstream publications, co-authored a chapter on electronic discovery in a new text from the Institute of Continuing Legal Education, and has presented at several ICLE conferences on the myriad issues associated with electronic discovery and document management. Mr. Moore also trained the staff of Michigan's Department of Attorney General about issues involving eDiscovery. Mr. Moore received his J.D. from the University of Virginia in 2002 and is admitted to the bar in Illinois and Michigan.

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I. INTRODUCTION Given its widespread use,1 social-media content has become an increasingly common target for discovery in civil litigation. Socialmedia sites contain a wealth of information about users’ daily activities, relationships, and opinions. Meanwhile, the highly personal nature of much of this content, as well as the expectation— often contrary to the law—that it can be kept private, often leads to disputes about its discoverability. In resolving these disputes, courts have taken a variety of different approaches, often struggling to adapt the existing discovery rules to these new forms of communication.

On the one hand, courts generally have found that social-media users do not have a reasonable privacy interest in this content; but on the other hand, courts have also sought to limit discovery of social-media content and have been reluctant to grant unfettered access to such information in recognition of privacy-like concerns. In many instances, courts have purportedly justified these limitations on the basis of relevance, although in a manner contrary to the application of the broad relevance standard for other types of documents and information otherwise subject to discovery. In this way, courts have created an alternate common-law standard for relevance with respect to social-media content.

This Article argues against creating a separate relevance standard for social-media content. Instead courts should apply proportionality in a flexible manner when managing social-media discovery— particularly in light of the privacy, accuracy, and public-policy concerns associated with this information. Part II explores the features and functionality of social-media sites. Part III reviews courts’ attempts to limit the discovery of social media using relevance and concludes that this framework is ill-suited to the courts’ underlying objective of protecting individuals from undue intrusion. Part IV discusses the trend towards using proportionality as a tool for limiting the scope of social-media discovery. And Part V proposes that courts utilize proportionality as a comprehensive framework for weighing the benefits of social-media discovery against burdens such as privacy, accuracy, and public policy.

1. Maeve Duggan & Aaron Smith, Social Media Update 2013, PEW RES. INTERNET PROJECT 1 (Dec. 30, 2013), http://www.pewinternet.org/files/ 2013/12/PIP_Social-Networking-2013.pdf (indicating 73% of online American adults use one or more social-media sites).

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II. THE FEATURES AND FUNCTIONS OF SOCIAL MEDIA Most people are familiar with social media’s features and functionality. Still, a solid understanding of the technology provides the groundwork for discussing social-media discovery.

Social-media content includes many forms of communications and data. Social media is quintessentially representative of secondgeneration web content commonly known as “Web 2.0.”2 Early internet technologies of the mid-1990s through the mid-2000s (referred to as “Web 1.0”) were static and allowed information to flow only from the website owner to the viewer. Web 2.0 is interactive and allows users to communicate with the website owner as well as each other.3 Registered users can log in to social-media sites and form connections with other users based on similar interests, backgrounds, goals, or personal or professional relationships.4 In addition to searching for new friends and keeping tabs on old acquaintances, users can employ social media to engage in a wide variety of communications, incorporating text, graphics, audio, or video.5 Thus, users may report on their current activities, blog, converse in forums or via direct messages, explore new music, view and share film trailers and video clips, join groups, plan events, advertise, or otherwise virtually interact with other users from across the nation or around the globe.6 Social-media sites typically provide different modes of communication among users. Users’ status updates and other postings are generally accessible to web users and search engines and may be released to the general public.7 Or they may be set to be accessible only by a more limited set of users, such as friends, family, or only members of a specific group.8 Most social-media services also permit direct private messaging between individual users.9 The users’ ability to tailor the initial audience for their 2. See Andrew C. Payne, Note, Twitigation: Old Rules in a New World, 49 WASHBURN L.J. 841, 843 (2010).

3. Id. at 843–45.

4. Kelly Ann Bub, Comment, Privacy’s Role in the Discovery of Social Networking Site Information, 64 SMU L. REV. 1433, 1435 (2011).

5. THE SEDONA CONFERENCE, PRIMER ON SOCIAL MEDIA 1 (Alitia Faccone et al. eds., 2012).

6. Bub, supra note 4, at 1435.

7. Payne, supra note 2, at 846.

8. Bub, supra note 4, at 1436.

9. Payne, supra note 2, at 846.

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communications is one of the social-media features that encourages users to generate frank, informal, and often highly personal content.10 The most used social-media sites include Facebook, GooglePlus, Myspace, LinkedIn, Twitter, Instagram, YouTube, and Pinterest. And there are hundreds of similar sites and apps, with more coming online every day. Facebook and GooglePlus are general social-networking platforms,11 while Myspace emphasizes connecting users through music and art,12 and LinkedIn focuses on professional networking.13 Twitter differentiates itself by limiting users to “tweeting” only 140 characters of text (in addition to photos and videos)14 and by being primarily focused on facilitating communications designed for consumption by the general public rather than a select group of friends.15 Instagram focuses on photographs,16 while YouTube features video clips.17 Pinterest allows users to find ideas for projects from around the web, bookmark them using “pins” (the Web 2.0 equivalent of a magazine clipping), and then organize and share their pins with other users.18 According to the Pew Research Internet Project, approximately 73% of online adults within the United States use a social-networking site, and 42% of those adults use more than one.19 Based on the percentage of online adult Americans using each site, Facebook ranks first at 71%, followed by LinkedIn (22%), Pinterest (21%), Twitter (18%), and Instagram (17%).20 Facebook also ranks first based on the 10. See Bub, supra note 4, at 1436.

11. See About, FACEBOOK, https://www.facebook.com/facebook/info (last visited Sept. 18, 2014); Overview, GOOGLE+, http://www.google.com/+/learnmore/ (last visited Sept. 18, 2014).

12. See Myspace Services Terms of Use Agreement, MYSPACE, https://myspace. com/pages/terms (last visited Sept. 18, 2014).

13. See About Us, LINKEDIN, http://www.linkedin.com/about-us (last visited Sept. 18, 2014).

14. See The Twitter Glossary, TWITTER, https://support.twitter.com/ articles/166337-the-twitter-glossary (last visited Sept. 18, 2014).

15. See Getting Started with Twitter, TWITTER, https://support.twitter.com/ groups/50-welcome-to-twitter/topics/204-the-basics/articles/215585-gettingstarted-with-twitter (last visited Sept. 18, 2014).

16. See INSTAGRAM, http://instagram.com/# (last visited Sept. 18, 2014).

17. See About YouTube, YOUTUBE, http://www.youtube.com/yt/about/ (last visited Sept. 18, 2014).

18. See About Pinterest, PINTEREST, http://about.pinterest.com/en (last visited Sept. 18, 2014).

19. Duggan & Smith, supra note 1.

20. Id. (using statistics from data collected in 2013).

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number of estimated unique monthly visitors (900 million), followed

by Twitter (310 million), LinkedIn (255 million), Pinterest (250 million), and GooglePlus (120 million).21 III: COURTS’ MANAGEMENT OF SOCIAL-MEDIA DISCOVERY Litigants often seek to discover an opposing party’s social-media accounts. For example, defendants often request social-media accounts in personal-injury cases because photos may reveal a plaintiff engaging in activities that belie his or her claims of incapacity or loss of enjoyment of life.22 These discovery requests are also common in response to emotional-distress claims, as a plaintiff’s posts to social media may be relevant to disproving damages.23 And social-media content is increasingly sought in contentious divorce proceedings to prove infidelity or other forms of misconduct.24 It is also increasingly sought regarding claims for lost wages and other forms of economic damages, given the wealth of work-related information on sites such as LinkedIn.25 Responding parties frequently object to discovery of social-media content—making it a contentious discovery issue.26 Courts often focus on two key considerations to determine whether social media is discoverable: the privacy expectations of the providing party and its relevance to the litigation. This Article concludes that because relevancy is a low bar, proportionality provides a better analytical framework for resolving these disputes that is more consistent with the existing discovery rules.

21. Top 15 Most Popular Social Networking Sites, EBIZMBA (Sept. 2014), http://www.ebizmba.com/articles/social-networking-websites.

22. See, e.g., Higgins v. Koch Dev. Corp., No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278 (S.D. Ind. July 5, 2013); Thompson v. Autoliv ASP, Inc., No. 2:09cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012); Moore v. Miller, No. 10-cv-651-JLK, 2013 WL 2456114 (D. Colo. June 6, 2013).

23. See, e.g., D.O.H. ex rel. Haddad v. Lake Cent. Sch. Corp., 2:11-CV-430, 2014 WL 174675 (N.D. Ind. Jan. 15, 2014); Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013); EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).

24. See William Hamilton & Wendy K. Akbar, E-Discovery in the Age of Facebook, Twitter & the Digital Family, 33 FAM. ADVOC., Fall 2010, at 16, 19.

25. See, e.g., Palm v. Metro PCS Wireless, Inc., No. 8:13-cv-698-T-33MAP, 2014 WL 1877578, at *1 (M.D. Fla. Apr. 29, 2014).

26. See, e.g., Johnson v. PPI Tech. Serv., L.P., No. 11-2773, 2013 WL 4508128, at *1–2 (E.D. La. Aug. 22, 2013).

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Privacy in Social Media

Responding parties often invoke privacy concerns when objecting to a discovery request for social-media information.27 But courts generally assert that users do not have a reasonable expectation of privacy with respect to social media.28 Courts base this assertion on the terms of service published by social-media sites: “[A]s neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.”29 Courts also maintain that the very nature of social-media sites should dispel any user’s reasonable expectation of privacy: “[W]hen Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.”30 One court is often quoted for stating, “Facebook is not used as a means by which account holders carry on monologues with themselves.”31 Another court noted that although it was conceivable that a person would use social media as a forum to “seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.”32 Moreover, one court even declared that making information accessible to others by posting it online strengthens the case for production.33 Despite concluding that users have no reasonable expectation of privacy regarding social media, courts simply refuse to compel

27. See, e.g., Giacchetto, 293 F.R.D. at 114; Reid v. Ingerman Smith LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752, at *1(E.D.N.Y Dec. 27, 2012); EEOC v. Original Honeybaked Ham Co., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974, at *1 (D. Colo. Nov. 7, 2012).

28. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 656 (Sup. Ct. 2010).

29. Id.; accord McMillen v. Hummingbird Speedway, Inc., No. 113-2010CD, 2010 WL 4403285 (Pa.Ct. Com. Pl. Sept. 9, 2010) (“[R]eading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else.”).

30. Romano, 907 N.Y.S.2d at 657.

31. See, e.g., EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 437 (S.D. Ind. 2010) (quoting Leduc v. Roman, 2009 CanLII 6838, para. 31 (Can. Ont. Sup. Ct. J.)).

32. McMillen, 2010 WL 4403285.

33. EEOC v. Original Honeybaked Ham Co., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974, at *2 (D. Colo. Nov. 7, 2012).

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unfettered access to this information without further consideration.34 Courts still guard against using social-media discovery as an improper “fishing expedition.”35 As one court asserted, allowing complete access to a plaintiff’s social-media accounts “would permit defendant to cast too wide a net. . . . Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home.”36 By insisting on limiting social-media discovery, courts concede that the producing party is entitled to some level of protection against intrusion. One court referred to the request for social-media information as an “intrusion into the class members’ semi-private lives.”37 Another court referred to social-media information as “quasi-personal,”38 and yet another felt compelled to consider the responding party’s “personal interests” with respect to social media.39 These references, as well as the limits courts place on social-media discovery, suggest that courts are actually considering privacy-like concerns when determining whether social media is discoverable.

B.

Discovery is Limited to Relevant Social Media

Because they refuse to explicitly recognize a privacy interest in social media yet insist on limiting access to such information, courts rely on a relevancy analysis to reconcile these mixed messages. The standard for relevancy that courts generally use is whether the 34. See, e.g., Moore v. Miller, No. 10-cv-651-JLK, 2013 WL 2456114, at *2 (D. Colo. June 6, 2013) (finding the information sought was relevant); Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928, at *4–5 (D. Nev. June 20, 2012); Glazer v. Fireman’s Fund Ins. Co., No. 11 Civ. 4374(PGG)(FM), 2012 WL 1197167, at *3 (S.D.N.Y. Apr. 5, 2012); see also Timothy C. Quinn, Comment, The Discoverability of Private Social Media Content: Are Pennsylvania Trial Courts Going Too Far by Granting Litigants Unfettered Access to Their Opponents’ Social Media Accounts?, 51 DUQ. L. REV. 787, 805 (2013).

35. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich.

2012); Mackelprang v. Fid. Nat. Title Agency of Nev., Inc., 2:06-cv-00788-JCMGWF, 2007 WL 119149, at *2 (D. Nev. Jan. 9, 2007).

36. Ogden v. All-State Career Sch., No. 2:13CV406, 2014 WL 1646934, at *4 (W.D. Pa. Apr. 23, 2014).

37. Original Honeybaked Ham Co., 2012 WL 5430974, at *1 (emphasis added).

38. Ogden, 2014 WL 1646934, at *4.

39. Thompson, 2012 WL 2342928, at *5.

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requested social-media information is reasonably likely to lead to the discovery of admissible evidence.40 Some courts require a threshold showing of relevance before permitting the discovery of private social-media information. Courts have allowed access to private social-media information where publicly available social-media information suggested that it was likely to be relevant.41 For example, one court concluded that the private portions of the plaintiff’s social-networking sites were likely to contain relevant evidence because material on the public portion of the plaintiff’s social-networking sites contradicted the plaintiff’s claims.42 In contrast, courts have denied social-media discovery where the requesting party could not make this threshold showing based on information that was either publicly available43 or previously produced.44 Courts also consider the particularity of the request for socialmedia information as part of their relevancy analysis. Courts have ordered production in response to narrowly defined requests.45 In 40. See FED R. CIV. P. 26(b)(1); see also, e.g., Higgins v. Koch Dev. Corp., No. 3:11-CV-81-RLY-WGH, 2013 WL 3366278, at * 1 (S.D. Ind. July 5, 2013); Original Honeybaked Ham Co., 2012 WL 5430974, at *1; Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-CV-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012).

41. Moore v. Miller, No. 10-cv-651-JLK, 2013 WL 2456114, at *2 (D. Colo.

June 6, 2013); Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928, at *4 (D. Nev. June 20, 2012); Glazer v. Fireman’s Fund Ins. Co., No. 11 Civ. 4374(PGG)(FM), 2012 WL 1197167, at *3–4 (S.D.N.Y. Apr. 5, 2012); Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 654 (Sup. Ct. 2010); see also Quinn, supra note 34, at 805.

42. Romano, 907 N.Y.S.2d at 654.

43. See Holder v. AT&T Servs., Inc., No. 3:11-0076, 2013 WL 5817575, at *3 (M.D. Tenn. Oct. 29, 2013); Johnson v. PPI Tech. Servs., L.P., CIV.A No.11-2773, 2013 WL 4508128, at *1−2 (E.D. La. Aug. 22, 2013); Keller v. Nat’l Farmers Union Prop. & Cas. Co., No. CV 12-72-M-DLC-JCL, 2013 WL 2773, at *4 (D. Mont. Jan. 2, 2013).

44. Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504, at *3 (M. D. Tenn. Mar. 20, 2013).

45. See, e.g., Kear v. Kohl’s Dep’t Stores, Inc., No. 12-CV-1235-JAR-KCG, 2013 WL 3088922, at *6 (D. Kan. June 18, 2013) (“Defendant has sufficiently limited the scope of this request by seeking limited access during the relevant time frame rather than seeking unfettered or unlimited access to Plaintiff’s social-media accounts.”); Anthony v. Atl. Grp., Inc., No. 8:09-CV-02383-JMC, 2012 WL 4009490, at *2 (D.S.C. Sept. 12, 2012) (“The requests do not seek broad disclosure of any and all SND, ESI, and email, but instead, narrowly defines [sic] the

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contrast, courts have denied requests that fail Federal Rule of Civil Procedure 34(b)(1)(A)’s “reasonable particularity” requirement, finding that they “are not reasonably calculated to lead to the discovery of admissible evidence”46 because they are “overbroad and vague.”47 In denying an overbroad request, one court expounded that the plaintiff’s username and password would allow defendants access to both relevant and irrelevant information.48 “The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.”49 Other courts are less stringent regarding this consideration and merely order a more limited production than what was requested.50 Once discovery is limited to relevant social-media information, courts often allow the producing party to determine which posts, comments, and media fall within the parameters of the production order. This methodology allows producing parties a significant amount of control over the level of intrusion they must endure. Thus, courts often put their trust in the producing party’s counsel to avoid unnecessarily invasive discovery of social-media information.51 Perhaps recognizing that this could be an onerous task, some courts allow the producing party to choose between providing the requesting party with complete access to social-media information and turning over only the relevant portions.52 Some courts conduct in camera inspections of private socialmedia information to ensure that only relevant information is responsive information as only those portions of Plaintiffs’ SND, ESI and email which directly relates to the issues raised in this case.”)..

46. Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 571 (C.D. Cal. 2012).

47. Ford v. United States, No. DKC 11-3039, 2013 WL 3877756, at *2 (D. Md. July 25, 2013).

48. Howell v. Buckeye Ranch, Inc., No. 2:11-CV-1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct. 1, 2012).

49. Id. 50. See Ogden v. All-State Career Sch., No. 2:13CV406, 2014 WL 1646934, at *4 (W.D. Pa. Apr. 23, 2014); Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-CV-632-J-JBT, 2012 WL 555759, at *2 (M.D. Fla. Feb. 21, 2012)..

51. See Bosh v. Cherokee Cnty. Gov’t Bldg. Auth., No. 11-CV-376-JHP, 2013 WL 6150799, at *4 (E.D. Okla. Nov. 22, 2013); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011).

52. See Ogden, 2014 WL 1646934, at *5; Fox v. Transam Leasing, Inc., No. 12-2706-CM-GLR, 2013 WL 5276111, at *2 (D. Kan. Sept. 18, 2013).

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produced.53 But employing in camera review to determine relevance is unusual because courts typically reserve in camera review for resolving disagreements regarding privilege.54 As such, some courts instead rely on protective orders. Given the burden in camera review places on courts, these orders reflect a high level of protection for litigants’ social-media information.55 Courts also consider the type of claim at issue when determining whether social-media information is relevant. Finding that the threshold-evidentiary-showing approach could lead to results that are either too broad or too narrow, one court undertook a traditional relevance analysis that differentiated between allegations of physical and emotional injury: “While the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiff’s claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous . . . .”56 The court said that while emotional distress claims may allow discovery of other potential causes of that distress, this does not permit “unfettered access to Plaintiff’s social networking history.”57 In sexual-harassment cases, some courts are also sensitive to Federal Rule of Evidence 412,58 which states that a “court may admit evidence offered to prove a victim’s sexual behavior or predisposition [in a civil case only] if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”59 One court refused to order the plaintiff to provide all of 53. See EEOC v. Original Honeybaked Ham Co., No. 11-CV-02560-MSKMEH, 2012 WL 5430974, at *5 (D. Colo. Nov. 7, 2012); Barnes v. CUS Nashville, L.L.C., No. 3:09-CV-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).

54. Collens v. City of New York, No. 03 Civ. 4477 JGKHBP, 2004 WL 1395228, at *2 (S.D.N.Y. June 22, 2004).

55. See, e.g., Moore v. Miller, No. 10-CV-651-JLK, 2013 WL 2456114, at *2 (D. Colo. June 6, 2013).

56. Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 115–16 (E.D.N.Y. 2013).

57. Id. 58. See Mackelprang v. Fid. Nat’l. Title Agency of Nev., Inc., No. 2:06-CV00788-JCM-GWF, 2007 WL 119149, at *3–4 (D. Nev. Jan. 9, 2007); see also Original Honeybaked Ham Co., 2012 WL 5430974, at *2–3 (requiring the aggrieved individuals in a sexual-harassment case to identify to the Special Master any web blog or public internet forum where he or she posted during the relevant time period, but excluding internet dating forums from the inquiry).

59. FED. R. EVID. 412.

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the private email messages on her Myspace accounts because they could include sexual email communications between the plaintiff and third persons and “courts applying Rule 412 have declined to recognize a sufficiently relevant connection between a plaintiff’s non-work related sexual activity and the allegation that he or she was subjected to unwelcome and offensive sexual advancements in the workplace.”60 Ultimately, decisions that use relevancy to protect against unnecessary rummaging through litigants’ social media do not reflect the fact that relevance is actually a low bar. Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”61 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”62 As noted above, to determine whether social-media information is relevant, courts generally use the very low standard of whether it is reasonably likely to lead to the discovery of admissible evidence.63 The paradox of using such a low bar to limit the social-media discovery suggests that courts are ultimately performing a proportionality analysis under the guise of relevancy.

IV: PROPORTIONALITY ON THE RISE The Federal Rules of Civil Procedure grant courts tools for limiting discovery beyond the simple relevancy scope requirement.

Most notably, courts can use the concept of proportionality to ensure that the burdens of production do not outweigh the benefits of the discovered information.

60. Mackelprang, 2007 WL 119149, at *6.

61. FED. R. CIV. P. 26(b)(1).

62. FED. R. EVID. 401.

63. See, e.g., Higgins v. Koch Dev. Corp., No. 3:11-CV-81-RLY-WGH, 2013 WL 3366278, at *1 (S.D. Ind. July 5, 2013); Original Honeybaked Ham Co., 2012 WL 5430974, at *1; Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-CV632-J-JBT, 2012 WL 555759, at *1–2 (M.D. Fla. Feb. 21, 2012).

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Proportionality: Weighing the Burdens Against the Benefits

The Federal Rules of Civil Procedure provide for the use of proportionality to manage discovery. Rule 26(b)(2)(C) provides that a court must limit unreasonably burdensome or disproportionately expensive discovery.64 Because the Rule states that courts must limit disproportionate discovery, courts are actually required to use proportionality. This proportionality requirement is binding on litigants as well because attorneys (or non-represented parties) must sign every discovery request, response, or objection, certifying that “it is . . . neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”65 To apply proportionality, courts balance the burden of producing requested materials against the benefit the materials would provide to the litigation. The benefit analysis of discovery focuses on the relevance of the data and its availability from other sources.66 The burden analysis often focuses on the transactional costs of making the information available.67 But more broadly considered, proportionality allows a court to avoid or limit discovery that is disproportionate to the individual lawsuit when considering (1) the suit’s nature and complexity; (2) the limitations on a financially disadvantaged litigant; and (3) the philosophical, social, or institutional significance of the substantive issues.68 The Rules also provide a proportionality analysis that is specific to electronically stored information: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”69 To apply this Rule, courts have followed the approach of Zubulake v. UBS Warburg LLC,70 which developed a continuum of accessibility for various types of storage systems.71 Under this 64. FED. R. CIV. P. 26(b)(2)(C).

65. FED. R. CIV. P. 26(g)(1)(B)(iii).

66. See CHARLES N. ASH JR. ET AL., INST. OF CONTINUING LEGAL EDUC., MICHIGAN CIVIL PROCEDURE §10.61 (2014).

67. See id. (“In the context of electronic discovery, the burden analysis often focuses on the cost of restoring or maintaining the electronic data.”).

68. FED. R. CIV. P. 26 advisory committee’s note.

69. FED. R. CIV. P. 26(b)(2)(B).

70. 217 F.R.D. 309 (2003).

71. See CHARLES N. ASH JR. ET AL., supra note 66, §10.59.

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approach, the most accessible forms of data are those stored in active, online systems.72 Social media would likely fall into this category, so proportionality is the appropriate limitation on the scope of socialmedia discovery.

B.

The Recent Push to Increase Courts’ Use of Proportionality

Currently, there is a push for courts to use proportionality with more frequency, as evidenced by the proposed amendments to the Federal Rules of Civil Procedure and the model order adopted by the United States District Court for the Eastern District of Michigan. The Advisory Committee has proposed several amendments to the Rules to promote the responsible use of discovery that is proportional to case needs.73 The Committee notes that although Rule 26(b)(2)(C) states that courts must limit discovery, the Rule has not achieved its intended purpose; surveys indicate that “excessive discovery occurs in a worrisome number of cases, particularly those that are complex, involve high stakes, and generate contentious adversary behavior.”74 In other words, “[t]he problem is not with the rule text but with its implementation—it is not invoked often enough to dampen excessive discovery demands.”75 As such, the Committee proposes to revise the scope of discovery defined in Rule 26(b)(1) by transferring the analysis required by present Rule 26(b)(2)(C)(iii) to Rule 26(a)’s definition of the scope of discovery. This will emphasize that discovery must be proportional to case needs considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.76 The Committee also proposes to amend Rule 26(b)(2)(C)(iii) to cross-refer to (b)(1) such that the court remains under duty, on motion or sua sponte, to limit the frequency or extent of discovery that exceeds the limits of proportionality.77 72. Id. 73. See COMM.

ON RULES OF PRACTICE & PROCEDURE OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF BANKRUPTCY AND CIVIL PROCEDURE 264 (2013), available at http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposedamendments.pdf.

74. Id. at 265.

75. Id. 76. Id. 77. Id.

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Other proposals seek to reduce the scope of discovery by making relevancy a higher bar. Another proposed amendment to Rule 26(b)(1) calls for deleting the “subject matter involved in the action” from the scope of discovery, thereby limiting it to the parties’ claims or defenses.78 The Committee also proposes to amend the second-tolast sentence—”Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence”—because many cases continue to cite the “reasonably calculated” language as though it defines the scope of proportional discovery.79 These cases include those determining whether social media is discoverable. To offset the risk that the provision would otherwise expand the limited scope of discovery, the Committee proposes to revise this sentence to read, “Information within this scope of discovery need not be admissible in evidence to be discoverable.”80 The United States District Court for the Eastern District of Michigan recently issued a model order reflecting a similar push to manage discovery using a proportionality analysis. The order’s purpose is to assist courts in securing “the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information . . . without court intervention.”81 Notably, it specifies that “[t]he proportionality standard set forth in [Rule] 26(b)(2)(C) should be applied in each [and every case] when formulating a discovery plan.”82 This order, as well as the proposed amendments to the Federal Rules of Civil Procedure, portrays a general push for courts and litigants to use proportionality with greater frequency.

V: USING PROPORTIONALITY TO MANAGE SOCIAL-MEDIA DISCOVERY Consistent with courts’ concerns regarding the invasiveness of social-media discovery and the recent push to increasingly use proportionality, this Article proposes that proportionality provides the

78. Id. at 265–66.

79. Id. at 266.

80. Id. 81. U.S. Dist. Court for the E. Dist. of Mich., Model Order Relating to the Discovery of Electronically Stored Information 1 (Sept. 20, 2013), available at http://www.mied.uscourts.gov/pdffiles/esiorderchecklist.pdf.

82. Id. at 1–2.

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appropriate analytical framework for managing social-media discovery.

A.

Proportionality Provides the Proper Framework for Managing Social-Media Discovery

Given courts’ varied and seemingly pretextual relevancy approaches to social-media discovery, commentators have proposed various alternatives. For example, one commentator suggests that courts should differentiate for discovery purposes between different aspects of social media, focus on the reasonable particularity of discovery requests, and rethink traditional notions of privacy.83 Another has argued that courts should distinguish between traditional electronically stored information and social media when determining how to apply discovery rules, including the possibility of issuing a protective order under Rule 26(c) to protect the privacy of social media when warranted.84 Embracing a holistic perspective, this Article proposes using proportionality as a comprehensive and transparent framework under which courts can weigh the benefits of social-media discovery against the costs, including nonmonetary burdens. There are several advantages to this proposal. First, using proportionality to manage social-media discovery gives courts and litigants a sound footing within the Federal Rules of Civil Procedure. Second, the proportionality framework allows courts to consider a wide array of issues that arise with respect to social-media discovery, including privacy, accuracy, and public-policy concerns. Therefore, proportionality is flexible enough to apply to future technologies within both social media and the digital world in general.

Notably, several courts have utilized proportionality to limit the scope of social-media discovery in employee class actions alleging Fair Labor Standards Act (FLSA) violations.85 In Jewell v. Aaron’s, Inc., the plaintiffs alleged that the defendant had failed to provide

83. Agnieszka A. McPeak, The Facebook Digital Footprint: Paving Fair and Consistent Pathways to Civil Discovery of Social Media Data, 48 WAKE FOREST L. REV. 887, 936–46 (2013).

84. Payne, supra note 2, at 862, 868–69.

85. See Palma v. Metro PCS Wireless, Inc., No. 8:13-CV-698-T-33MAP, 2014 WL 1877578, at *2 (M.D. Fla. Apr. 29, 2014); Jewell v. Aaron’s, Inc. (Jewell II), No. 1:12-CV-0563-AT, 2013 WL 3770837, at *3–5 (N.D. Ga. July 19, 2013).

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them with paid meal periods.86 The defendant requested that the plaintiffs produce any social-media information posted during their working hours, claiming that posts could indicate that the plaintiffs took lunch breaks.87 The court first analyzed the benefit of such information in terms of relevance, determining that a plaintiff’s Facebook post made during work might have nothing to do with whether the plaintiff actually received a paid meal period. The court stated that “defendant’s argument in support of the discovery of every social media posting by plaintiffs over a four year period is supported by nothing more than its ‘hope that there might be something of relevance’ in these plaintiff’s [sic] Facebook, Twitter, and/or MySpace accounts.”88 The court then observed how time consuming it would be for each of the 87 opt-in plaintiffs to sift through all their postings over a four-year period, possibly including multiple social-networking sites, and match that data to their work schedules from the same period.89 Applying proportionality, the court concluded that “the burden imposed on a class of plaintiffs to produce such an overly broad swath of documents, while technologically feasible, is far outweighed by the remote relevance of the information.”90 Although these FLSA cases considered only traditional burdens, they demonstrate the feasibility of utilizing proportionality as a framework to manage social-media discovery.

B. Courts Can Consider Nonmonetary Burdens under Proportionality Under the proportionality framework, courts can and should consider the nonmonetary burdens associated with social-media discovery in addition to the more traditional burdens. In reality, traditional transaction costs also capture other values that society believes to be important.91 As one commentator notes, “[T]he cost of personally visiting a clerk’s office and looking up property or court records concerning individuals not only made large-scale use of such records inefficient, but it also protected personal privacy to some 86. Jewell v. Aaron’s, Inc. (Jewell I), No. 1:12-CV-0563-AT, 2012 WL 2477039, at *1 (N.D. Ga. June 28, 2012).

87. See Jewell II, 2013 WL 3770837, at *3.

88. Id. at *4.

89. Id. 90. Id. at *5; see also Palma, 2014 WL 1877578, at *2.

91. See Bruce E. Boyden, Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law, 65 ARK. L. REV. 39, 44 (2012).

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extent.”92 Because the ready accessibility of social media minimizes transaction costs, the consideration of nonmonetary burdens associated with its discovery should move to the forefront of any proportionality analysis.

The Federal Rules of Civil Procedure allow courts to consider nonmonetary burdens related to production when managing discovery requests.93 Rule 26(c) allows courts to issue an order limiting or even forbidding discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden.94 The Advisory Committee’s commentary regarding Rule 26(b)(2)(C)(iii) also indicates that courts can consider nonmonetary factors to avoid disproportionate discovery.95 Indeed, according to the Sedona Conference Commentary on Proportionality, one of the six principles of proportionality is that “[n]onmonetary factors should be considered when evaluating the burdens and benefits of discovery.”96 As such, courts can and should consider the extent that social-media discovery may implicate privacy concerns, create an inaccurate impression, or chill future claims.

1.

Privacy

Under the proportionality framework, courts can and should consider privacy-like concerns of providing parties. As previously discussed, privacy, or something like it, seems to be a lingering concern for courts with respect to social-media discovery. In fact, at least one court has accounted for privacy-like concerns within the proportionality framework.97 In Nola Spice Designs, LLC v. Haydel Enterprises, Inc., a trademark-infringement case, Haydel sought an order compelling Nola and its principal to produce their passwords 92. Id. 93. See generally FED. R. CIV. P. 26 (establishing the procedure that governs discovery).

94. FED. R. CIV. P. 26(c)(1).

95. See Advisory Committee Notes to 1983 Amendments to FED. R. CIV. P. 26, 97 F.R.D. 165, 218 (“Rule 26(b)[(2)(C)(iii)] address[es] the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity . . . [and] the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests . . . .”).

96. THE SEDONA CONFERENCE, THE SEDONA CONFERENCE COMMENTARY ON PROPORTIONALITY IN ELECTRONIC DISCOVERY 2 (2013).

97. Nola Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535, at *1–2 (E.D. La. Aug. 2, 2013).

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and user names to all relevant websites (including social media, weblogs, and financial sites) and submit their computers to an exhaustive forensic examination.98 The court found that there was some benefit to the discovery of such information, as Nola had used social media and other websites to publicize and sell its potentially infringing products.99 But the court concluded that other nonmonetary factors outweighed this benefit: In this case, Haydel’s ultra-broad request for computer passwords and user names poses privacy and confidentiality concerns that go far beyond published social media matters and would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to Nola and [its principal]. Neither Haydel’s vague representation that it would limit itself to accessing cyberspace information “related to the issues in this litigation” or the protective order already in place would be effective in controlling the potential for mischief in compelling Nola and [its principal] to give Haydel their computer passwords and user names.100 The court denied the request because it was overly broad and exceeded the proportionality limits of Federal Rule of Civil Procedure 26(b)(2)(C).101 Users continue to have some expectation of privacy regarding social media. Many users feel an exaggerated sense of security in the information they post on social media due to the intricate privacy controls available on the sites.102 This sentiment is encouraged by the media, legislators, and the sites themselves, which lobby for users to enjoy some level of protection while using social media. The media expressed outrage over some employers’ policies requiring or requesting job candidates to provide their Facebook passwords.103 This in turn instigated legislative efforts, some of which were 98. Id. at *1.

99. Id. at *3.

100. Id. at *1.

101. Id. 102. See Bub, supra note 4, at 1436.

103. John G. Browning, With “Friends” Like These, Who Needs Enemies?

Passwords, Privacy, and the Discovery of Social Media Content, 36 AM. J. TRIAL ADVOC. 505, 511 (2013).

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successful, to make such policies illegal.104 At the height of the controversy, Facebook reminded users that sharing passwords or access to accounts with a third party violates the site’s terms of service.105 Even if social media cannot be considered private, it is highly personal. Social science claims that social-media sites “create an ‘intimate, confidential, and safe setting’ which breeds a natural ground for socialization.”106 Users rationalize that social media must be safe and their personal information must be protected since millions of other people have engaged in the same activities.107 Due to this safety-in-numbers rationale, users may also have a diminished fear of sharing their intimate information because they believe it is unlikely that their information would be singled out from the information posted by the millions of other users.108 In addition, demand exists for increased privacy among socialmedia users. In response to complaints that users could only untag a photo after it had already been posted, Facebook now allows users the option of approving tagged photos before they appear on their Timelines.109 More recently, Facebook changed its default setting for new users from “public” to “friends only” in response to feedback that users were unintentionally over-sharing their information: “We recognise that it is much worse for someone to accidentally share with everyone when they actually meant to share just with friends, compared with the reverse.”110 Attempting to gain a greater sense of privacy, some Facebook users are now posting under pseudonyms. Using a pseudonym violates Facebook’s policies: “We require everyone to provide their real names, so you always know who you’re connecting with. This 104. Id. 105. Id. at 512; see also Erin Egan, Protecting Your Passwords and Your Privacy, FACEBOOK (Mar. 23, 2012, 7:32 AM), http://www.facebook.com/notes/ facebook-and-privacy/protecting-your-passwords-and-yourprivacy/326598317390057.

106. Bub, supra note 4, at 1436.

107. Id. 108. Id. 109. Kathryn R. Brown, The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs, 14 VAND. J. ENT. & TECH. L. 357, 363 (2012).

110. Juliette Garside, Facebook Bows to Pressure on Privacy Settings for New Users, THE GUARDIAN (May 22, 2014, 15:25 EDT), http://www.theguardian.com/ technology/2014/may/22/facebook-privacy-settings-changes-users/print.

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helps keep our community safe.”111 But the growing trend of pseudonyms on Facebook underscores the importance of privacy to social-media users: “Even a slight misspelling can guard against prying employers, college admissions reviewers, future privacy policy changes Facebook might make, and any dystopian scenarios in which, say, a police state uses Facebook to identify dissenters.”112 Facebook is also facing stiff competition from ephemeral social media. The best known example, Snapchat, is a mobile app that allows users to send photos and videos to their friends, but with one unique twist: the “snaps” self-destruct within seconds.113 If someone cheats and tries to take a screenshot of your snap for posterity, the app will notify the sender.114 An entire subindustry of privacyconscious social-media services has emerged, including Clipchat (a Snapchat-Twitter hybrid), Wickr (disappearing texts) and “dozens of other apps pushing the boundaries of digital communication back toward what a telephone call used to be—a way to communicate with little risk it will come back to bite you.”115 This market for impermanent social media suggests that both users and providers of social media want some level of privacy protection for digital communications.

Social-media users’ expectation of—or at least strong desire for—privacy suggests that notions of privacy within the legal system should adjust as technology evolves. As one commentator argues, social media’s popularity reflects the fact that people are inherently social beings: Despite the warnings and potential privacy dangers, users reveal intimate personal information through social networks to fulfill their innate human social needs. Whether online or offline, the sharing of 111. What Names Are Allowed on Facebook?, FACEBOOK, https://www. facebook.com/help/www/112146705538576 (last visited Oct. 11, 2014).

112. Adrianne Jeffries, Facebook’s Fake-Name Fight Grows as Users Skirt the Rules, THE VERGE (Sept. 17, 2012, 10:01 AM), http://www.theverge.com/2012/9/ 17/3322436/facebook-fake-name-pseudonym-middle-name.

113. See Felix Gillette, Snapchat and the Erasable Future of Social Media, BLOOMBERG BUSINESSWEEK (Feb. 7, 2013), http://www.businessweek.com/ articles/2013-02-07/snapchat-and-the-erasable-future-of-social-media#p1.

114. Id. 115. J.J. Colao, The Inside Story of Snapchat: The World’s Hottest App or a $3 Billion Disappearing Act?, FORBES (Jan. 6, 2014, 8:00 AM), http://www.forbes. com/sites/jjcolao/2014/01/06/the-inside-story-of-snapchat-the-worlds-hottest-appor-a-3-billion-disappearing-act/.

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intimate knowledge is the building block for establishing personal and community relationships. . . . The social goals that Facebook and Twitter members pursue are the same goals that everyone seeks to achieve every day—the Internet just makes it easier.116 Because relationships built on this sharing of intimate information cannot exist without some degree of privacy, a blanket rule that social-media users have no expectation of privacy threatens the social benefits of the technology.117 Another privacy issue arises from the sheer magnitude of data available through social media.118 Allowing discovery of this aggregation of extensive data may constitute a valid privacy concern.119 Apparently recognizing this concern, one court proclaimed, “This Court would not allow depositions of every friend and acquaintance to inquire about every conversation and interaction with plaintiff. So too, the Court will not require plaintiff to produce all information from all her social-media websites to obtain similar information.”120 2.

Accuracy

Under the proportionality framework, courts can also consider the accuracy of social-media information when determining whether it is discoverable. Courts have already begun to question how accurately social media reflects a user’s emotional state when conducting relevancy analysis: The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress . . . . For example, a severely depressed person may have a good day or several good days and choose to post

116.

117.

118.

119.

120.

Payne, supra note 2, at 868–69.

Id. at 869.

McPeak, supra note 83, at 889.

Id. Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011).

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about those days and avoid posting about moods more reflective of his or her actual emotional state.121 This bias could be exaggerated to such an extent that defendants could argue that the absence of communications related to a plaintiff’s claim of emotional distress casts doubt as to the claim’s validity.122 Social-science studies also question the extent to which socialmedia profiles reflect their user. Some studies find that social-media users strive to present themselves advantageously online: “When creating a Facebook profile, users have time to reflect about the impression they wish to present to their network of Facebook friends, . . . with each addition of information designed to create a flattering impression.”123 Thus, viewers can misjudge a user’s offline behavior and identity based on social-media information.124 While other research concludes that users’ online personas more closely resemble their actual personalities, these studies fail to eliminate accuracy concerns. For example, a 2008 study proposed that, because users use their real names on Facebook, their offline friends can hold them “accountable for an exaggerated or misleading online persona.”125 However, as previously discussed, there is a growing trend of users who post under pseudonyms, and the study itself admitted that online profiles generally “display a ‘socially desirable,’ group-oriented, ‘smiling’ persona that, while not completely reflective of the person’s actual self, is also not totally idealized.”126 Social media’s apparent inaccuracy seems to have inspired Snapchat’s creation. An article about the ephemeral social-media app described the misperceptions generated by traditional social media as follows: A funny thing has happened since the social network debuted in 2004—our friends stopped being 121. Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 115–16 (E.D.N.Y. 2013).

122. See Rozell v. Ross-Holst, No. 05 Civ. 2936(JGK)JCF, 2006 WL 163143, at *3 (S.D.N.Y. Jan. 20, 2006).

123. Brown, supra note 109, at 364–65 (2012).

124. Id. at 364.

125. Id. at 366 (citing Shanyang Zhao et. al., Identity Construction on Facebook: Digital Empowerment in Anchored Relationships, 24 COMPUTERS IN HUM. BEHAV. 1816, 1820 (2008)).

126. Brown, supra note 109, at 366.

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themselves. “I don’t know about you but my friends are really weird,” says [Snapchat creator Evan] Spiegel. Yet all of their quirks have been lost in the rarefied air of social media, replaced by selfconscious, superhuman wits who trade in “envy me” scenes—sunsets and vacations, impossibly fun parties and gourmet dinners. Spontaneity, now punishable by career ruin, has been abandoned. Instead, everyone is busy curating a perfected online image. “People are living with this massive burden of managing a digital version of themselves,” Spiegel laments. “It’s taken all of the fun out of communicating.”127 In contrast, the idea behind Snapchat is that the temporary nature of snaps frees users to send authentic photos and videos, no matter how unflattering.128 Social science also suggests that courts should consider the accuracy with which a juror might view social-media information when determining whether it is discoverable. Psychologists have demonstrated that profile viewers tend to overestimate others’ outward expressions of happiness and underestimate their negative sentiments.129 This bias compounds the accuracy concerns about social-media discovery discussed previously.

3.

Chilling Effect

Courts can also consider public-policy concerns as a nonmonetary burden under the proportionality framework. The main policy consideration at issue is the extent to which social-media discovery could have a chilling effect on claims. While discovery, in general, would perhaps be more efficient if opposing counsel could simply search through a party’s documents, it would be far too invasive to require litigants to expose their most personal thoughts or confidential business plans to an adverse party.130 Thus, an overly

127. J.J. Colao, Snapchat: The Biggest No-Revenue Mobile App Since Instagram, FORBES (Nov. 27, 2012, 1:36 PM), http://www.forbes.com/sites/jjcolao/ 2012/11/27/snapchat-the-biggest-no-revenue-mobile-app-since-instagram/.

128. See id.

129. Brown, supra note 109, at 366–67.

130. Boyden, supra note 91, at 44.

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liberal discovery process could dissuade parties from litigating meritorious claims.131 Most would-be plaintiffs will have to weigh the likelihood that their social-media information will be subject to discovery when deciding whether to file their claim. This realization seems to have motivated at least one court’s decision to deny a request for socialmedia discovery in the absence of a threshold showing of relevance: “Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a bright-line rule that such conditions allow defendants unfettered access to a plaintiff’s social networking sites that he or she has limited from public view.”132 Under proportionality, courts should account for the chilling effect on claims that could potentially result from expansive social-media discovery.

C. Remaining Uncertainties Although proportionality provides a comprehensive theoretical framework for weighing the benefits of social-media discovery against the burdens, this proposed solution is unlikely to provide bright-line rules for litigants. Courts can and should consider the nonmonetary burdens associated with social-media discovery, but they are unlikely to weigh concerns related to privacy, accuracy, and public policy in a uniform manner. As discussed previously, there is evidence that both bolsters and undermines users’ privacy expectations with respect to social media. Likewise, social science has failed to provide a consistent measure of the extent to which social media presents accurate depictions of its users. The extent of social-media discovery’s chilling effect on claims also remains unclear. Therefore, it is inevitable that these nonmonetary burdens will be weighed differently across courts. Still, because proportionality provides a framework for determining whether social media is discoverable, implementing this Article’s proposal will facilitate dialogue between courts and litigants during discovery and could eventually establish a relatively stable equilibrium.

131. See id.

132. Johnson v. PPI Tech. Servs., L.P., Civ. A. No. 11-2773, 2013 WL 4508128, at *2 (E.D. La. Aug. 22, 2013).

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VI. CONCLUSION In sum, proportionality, rather than relevance, provides the appropriate analytical framework for managing social-media discovery—particularly in light of privacy, accuracy, and publicpolicy concerns. This proportionality analysis provides a means that both harmonizes the various approaches that courts have taken and avoids creating a separate relevance standard for social-media content. The principle of proportionality is also flexible enough to evolve as technology advances, which will permit courts to appropriately assess the specific facts on a case-by-case basis while still remaining consistent with the Federal Rules of Civil Procedure.

KEEPING THE BALANCE TRUE: PROOF REQUIREMENTS FOR CONFRONTATION FORFEITURE BY WRONGDOING TIM DONALDSON* ABSTRACT Forfeiture by wrongdoing plays a prominent role in current confrontation jurisprudence. The Supreme Court of the United States has held that the Confrontation Clause of the Sixth Amendment to the United States Constitution generally prohibits use of testimonial hearsay against a defendant in a criminal case unless the defendant has been afforded an opportunity to cross-examine the person who made the hearsay statement. The only exception to the general rule that has been firmly endorsed by the Supreme Court to date is a forfeiture principle. A criminal defendant can lose the right to crossexamine someone who the defendant has prevented from testifying at trial.

While the Supreme Court has been clear about the substantive requirements for the forfeiture-by-wrongdoing doctrine, it has been far less clear about how the principle works in practice. It has left a question unanswered: What evidentiary standard is required to prove wrongdoing so that confrontation forfeiture applies? Lower courts are divided on this issue.

This Article analyzes lower-court decisions that have adopted a burden of proof to resolve confrontation-forfeiture issues. It also analyzes clues from the Supreme Court that might indicate what proof standard the Court will eventually adopt. Based upon (1) a social-disutility scale utilized by some lower courts in forfeiture-bywrongdoing cases and (2) Supreme Court holdings in other settings to resolve proof-burden questions, a preponderance-of-the-evidence standard should apply to determine whether a defendant in a

* Tim Donaldson has been the City Attorney & municipal prosecutor for Walla Walla, Washington, since 1996. He is also President of the Washington State Association of Municipal Attorneys and admitted to the bar in Washington (1987), Oregon (1992), and Idaho (1994). Mr. Donaldson earned his J.D. magna cum laude from Gonzaga University School of Law in 1987 and his B.A. from Whitman College in 1984. The author thanks Hugh O. Evans, James R. Woolston, and Scott D. Staples.

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criminal case engaged in misconduct and has thereby forfeited his or her right to cross-examine a missing witness.

TABLE OF CONTENTS I.INTRODUCTION ............................................................................... 430 II.CLEAR-AND-CONVINCING-EVIDENCE STANDARD......................... 432 III.PREPONDERANCE-OF-THE-EVIDENCE STANDARD ........................ 436 IV.CLUES TO THE STANDARD PREFERRED BY THE SUPREME COURT .............................................................................. 442 V.JUSTICE HARLAN’S SOCIAL-DISUTILITY SCALE ............................ 446 VI.CONCLUSION ............................................................................... 454 I.

INTRODUCTION

A defendant who wrongfully procures the absence of a witness cannot complain about his or her inability to cross-examine that witness.1 This rule, accepted for centuries, is coeval with recognition of a right of cross-examination.2 If a missing witness appeared “to have been kept away by the opposite party,” then depositions could be used at trial in lieu of live testimony. 3 The Supreme Court of the United States adopted the forefeiture-by-wrongdoing doctrine in 1878.4 The doctrine fell into apparent disuse for many years, but it experienced a resurgence in the 1970s and was eventually converted into an evidentiary rule in 1997 when Federal Rule of Evidence 804(b)(6) was adopted.5 1. Mattox v. United States, 156 U.S. 237, 242 (1895) (“[I]f the witness is absent by the procurement or connivance of the defendant himself, he is in no condition to assert his constitutional immunity.”).

2. Compare Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H.L. 1666) (recognizing the forfeiture-by-wrongdoing doctrine), with John H. Wigmore, The History of the Hearsay Rule, 17 HARV. L. REV. 437, 445 (1904) (writing that the hearsay doctrine and its attendant right of cross-examination became fixed sometime between 1675 and 1690).

3. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 318 (Boston, Little, Brown & Co. 1868).

4. Reynolds v. United States, 98 U.S. 145, 158–59 (1878).

5. AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE, 520 U.S. 1323, 1328 (1997). See generally Tim Donaldson, Combating Victim/Witness Intimidation in

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In 2004, the Supreme Court commented that it continued to accept the doctrine as an equitable exception to a defendant’s right of confrontation.6 It indicated two years later that Federal Rule of Evidence 804(b)(6) “codifies the forfeiture doctrine.”7 And, in 2008, the Court reaffirmed its acceptance of the rule in Giles v. California,8 holding that a defendant forfeits his or her constitutional right to confront a witness if the defendant has kept that witness from attending trial and the defendant’s wrongful conduct was committed to prevent that witness from testifying.9 Despite clarifying what elements must be proven for forfeiture by wrongdoing to apply, the Supreme Court has taken “no position on the standards necessary to demonstrate such forfeiture.”10 Lower courts sharply disagree about the standard of proof that should apply. The Supreme Court of Washington has adopted a clearand-convincing-evidence standard because it believes that the loss of a defendant’s confrontation right constitutes a substantial deprivation and “the stakes are simply too high to be left to a mere preponderance standard.”11 The court stated that “this is not an easy standard to meet, but the right of confrontation should not be easily deemed forfeited by an accused.”12 In Washington, “a defendant forfeits the Sixth Amendment right to confront a witness when clear, cogent, and convincing evidence shows that the witness has been made unavailable by the wrongdoing of the defendant, and that the defendant engaged in the wrongful conduct with the intention to prevent the witness from testifying.”13 In contrast, Michigan courts find the reasoning in support of a clear-and-convincing-evidence test to be unpersuasive in the face of Family Violence Cases: A Response to Critics of the “Forfeiture by Wrongdoing” Confrontation Exception Resurrected by the Supreme Court in Crawford and Davis, 44 IDAHO L. REV. 643, 654–61 (2008) (tracing the history of the doctrine between the 1870s and the adoption of FED. R. EVID. 804(b)(6)).

6. Crawford v. Washington, 541 U.S. 36, 62 (2004) (citing Reynolds, 98 U.S. at 158–59).

7. Davis v. Washington, 547 U.S. 813, 833 (2004).

8. 554 U.S. 353 (2008).

9. Id. at 359–68.

10. Davis, 547 U.S. at 833.

11. State v. Mason, 162 P.3d 396, 404 (Wash. 2007), abrogated in part by Giles, 554 U.S. at 361, as recognized in State v. Dobbs, 320 P.3d 705, 709 (Wash.

2014).

12. Id. at 404–05.

13. Dobbs, 320 P.3d at 709–10.

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widespread support for the use of a preponderance-of-the-evidence standard.14 The Michigan Court of Appeals has noticed similarities between the Michigan and the federal evidentiary rules and noted that the federal rules adopt a preponderance standard.15 The court found “no basis for deviating from the preponderance of the evidence standard generally applicable to preliminary questions of admissibility.”16 Relying on this analysis, the Michigan Supreme Court held in People v. Burns17 that the forfeiture-by-wrongdoing doctrine adopted in Michigan’s evidentiary rules requires the prosecution to “show by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2) the wrongdoing was intended to procure the declarant’s unavailability; and (3) the wrongdoing did procure the unavailability.”18 This Article evaluates both proof standards in relation to the importance of the confrontation right and the policy behind the forfeiture-by-wrongdoing doctrine. It concludes that the conduct that the doctrine is intended to prevent necessitates a preponderance-ofthe-evidence standard, especially in light of the rigorous substantive requirements adopted by Giles.

II.

CLEAR-AND-CONVINCING-EVIDENCE STANDARD

Courts that have adopted a clear-and-convincing-evidence standard have relied on two different rationales, as shown in United States v. Thevis19 and People v. Geraci.20 The United States Court of Appeals for the Fifth Circuit recognized a confrontation-waiver-bymisconduct principle in United States v. Thevis.21 The defendants in that case murdered a prospective witness against them to prevent his 14. People v. Jones, 714 N.W.2d 362, 368 (Mich. Ct. App. 2006).

15. Id. 16. Id. 17. People v. Burns, 832 N.W.2d 738 (Mich. 2013).

18. Id. at 745 (citing Jones, 714 N.W.2d at 362). The court in Burns recognized that the constitutional question of a defendant’s right of confrontation often goes hand-in-hand with the evidentiary question of admissibility when the forfeiture-bywrongdoing doctrine is implicated, but its ruling expressly addressed only the standard applicable to the evidentiary rule. See id. at 744. But it does appear that satisfaction of the demands of the evidentiary rule in Michigan will also meet constitutional requirements for forfeiture. See People v. Roscoe, 846 N.W.2d 402, 407 (Mich. Ct. App. 2014).

19. 665 F.2d 616 (5th Cir. 1982).

20. 649 N.E.2d 817 (N.Y. 1995).

21. Thevis, 665 F.2d at 630–31.

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testimony.22 The trial court held that one defendant’s misconduct impliedly waived his right to confront the murdered witness, and the court admitted prior testimony given by the witness.23 The Fifth Circuit affirmed the trial court’s ruling on the issue, explaining that when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him.

To permit such subversion of a criminal prosecution “would be contrary to public policy, common sense, and the underlying purpose of the confrontation clause” and make a mockery of the system of justice that the right was designed to protect.24 The Thevis court found the question of the proper standard of proof to be more difficult.25 It rejected the defendant’s argument that a reasonable-doubt standard should apply because standards for admissibility of evidence are not the same as those for determining guilt.26 At the same time, the court rejected a preponderance-of-theevidence standard because “of the intimate association between the right to confrontation and the accuracy of the fact-finding process.”27 The Thevis court concluded that a more stringent standard was required because the Supreme Court had repeatedly stressed the importance of cross-examination in testing the reliability of evidence.28 The Thevis court differentiated confrontation waiver from the exclusionary rule barring the use of involuntary confessions. The Supreme Court endorsed the use of a preponderance standard to determine the voluntariness of a confession. It did so because this exclusionary rule does not normally deal with evidence reliability and is instead aimed at deterring police misconduct.29 But the Fifth Circuit equated admitting evidence through confrontation waiver 22. Id. at 621.

23. United States v. Thevis, 84 F.R.D. 57, 72–73 (N.D. Ga. 1979).

24. Thevis, 665 F.2d at 630 (citations omitted) (quoting United States v.

Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976)).

25. Id. 26. Id. at 630–31.

27. Id. at 631.

28. Id. 29. Id.

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with the admissibility of tainted identification evidence because both involve reliability questions. The court reasoned, “Where reliability of evidence is a primary concern, the Supreme Court has conditioned admissibility on the ‘clear and convincing’ standard.”30 Therefore, the Thevis court held that “because confrontation rights are so integral to the accuracy of the fact-finding process and the search for truth, in contrast to the exclusionary rule, we conclude that the trial court was correct in requiring clear and convincing evidence of a waiver of this right.”31 The Court of Appeals of New York reached a similar conclusion in People v. Geraci,32 but it used a different method than the Thevis court.33 Like the Fifth Circuit in Thevis, New York’s high court determined that a preponderance-of-the-evidence standard was relatively undemanding, and a “more exacting standard, which is the one most protective of the truth-seeking process, should be adopted in this state.”34 Unlike the Thevis court, the Geraci court did not attempt to compare and contrast proof standards used in other situations and instead resorted to a balancing test to determine which standard to apply. The Geraci court explained: Because human fact finders lack the quality of omniscience, the process of determining the truth in adjudicative proceedings necessarily involves some margin of error. The size of the margin of error that the law is willing to tolerate varies in inverse proportion to the importance to the party or to society 30. Id. 31. Id. The subsequent history of Thevis can be somewhat confusing. Thevis is considered precedent in both the Fifth and Eleventh Circuits. See Bonner v. City of Prichard, 661 F.2d 1206, 1209–10 (11th Cir. 1981) (adopting decisions made by the Fifth Circuit before October 1, 1981, as part of the body of law for the Eleventh Circuit). The Eleventh Circuit held that Thevis was superseded by the adoption of a preponderance standard in FED. R. EVID. 804(b)(6). United States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001). The Fifth Circuit similarly recognized in an unreported case that a preponderance standard now applies to forfeiture by wrongdoing under the evidentiary rule, but it noted that the standard of proof under the Confrontation Clause may be higher. United States v. Nelson, 242 F. App’x 164, 171 n.2 (5th Cir. 2007). The Fifth Circuit has also held that state courts in that circuit are not bound by the clear-and-convincing-evidence standard adopted by Thevis. Magouirk v. Phillips, 144 F.3d 348, 361–62 (5th Cir. 1998).

32. 649 N.E.2d 817 (N.Y. 1995).

33. Id. at 818.

34. Id. at 821–22.

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of the issue to be resolved. On one end of the spectrum are most civil disputes, where, from a societal standpoint, “a mistaken judgment for the plaintiff is no worse than a mistaken judgment for the defendant.” On the other end are criminal determinations of guilt or innocence, “[w]here one party has at stake an interest of transcendent value.”

The rules governing how persuasive the proof must be “[represent] an attempt to instruct the factfinder concerning the degree of confidence our society thinks . . . should [be had] in the correctness of factual conclusions for a particular type of adjudication.”

Viewing the issue in light of this fundamental principle, we deem the “clear and convincing evidence” standard to be the test that best recognizes the gravity of the interest at stake and most effectively balances the need to reduce the risk of error against the practical difficulties of proving witness tampering.35 The court noted that the waiver-by-misconduct rule is not justified by the inherent reliability of the evidence that the prosecution seeks to admit; instead, the rule is justified by the public policy of reducing the incentive for witness tampering.36 The court noted that the particular type of ex parte statements at issue, grand jury testimony, may be given under grants of immunity and circumstances that cast doubt on the statements’ reliability.37 The Geraci court concluded: These factors militate in favor of a standard of proof that is high enough to assure a great degree of accuracy in the determination of whether the defendant was, in fact, involved in procuring the witness’s unavailability for live testimony. While we recognize the need for the use of this less trustworthy class of evidence when necessitated by the defendant’s misconduct, we also believe that such use

35. Id. (citations omitted).

36. Id. at 822.

37. Id.

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should be authorized only to the extent that the misconduct is clearly and convincingly shown.38 The Washington Supreme Court agreed with the reasoning of Geraci and adopted a clear, cogent, and convincing evidence standard without much independent analysis of the issue.39 Also, a federal district court adopted reasoning consistent with Thevis because it concluded that the right to confrontation is critically connected to the accuracy of the factfinding process.40 This standard has also been adopted by statute in at least two jurisdictions.41 Jurisdictions adopting a clear-and-convincing-evidence standard nonetheless recognize that it is the minority view.42 And when a federal district court adopted a clear-and-convincing-evidence standard, the United States Court of Appeals for the First Circuit disagreed and replaced it with a preponderance-of-the-evidence standard.43 In another instance, a clear-and-convincing-evidence standard was adopted by a California appellate court but retracted on reconsideration and ultimately rejected by the California Supreme Court in favor of the majority view.44 III.

PREPONDERANCE-OF-THE-EVIDENCE STANDARD

Like the Fifth Circuit in Thevis, the United States Court of Appeals for the Second Circuit recognized in United States v.

38. Id. 39. State v. Mason, 162 P.3d 396, 404–05 (Wash. 2007).

40. United States v. Houlihan, 887 F. Supp. 352, 360 (D. Mass. 1995).

41. CAL. EVID. CODE § 1350(a)(1) (Westlaw 2014) (adopting a hearsay exception for wrongdoing applicable in criminal proceedings involving serious felonies under a clear-and-convincing-evidence standard); MD. CODE ANN., CTS. & JUD. PROC. § 10-901 (Westlaw 2014); see also Smiley v. State, 84 A.3d 190, 200– 01 (Md. Ct. Spec. App. 2014) (discussing Maryland’s statutory requirements), cert. granted, 89 A.3d 1104 (Md. 2014). But see People v. Banos, 100 Cal. Rptr. 3d 476, 503 n.12 (Ct. App. 2009) (discussing an apparent conflict between the statutory standard and the standard adopted by California courts).

42. Houlihan, 887 F. Supp. at 360; Mason, 162 P.3d at 404.

43. United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996).

44. See People v. Giles, No. B166937, slip op. at 8–9, 11 (Cal. Ct. App. Oct. 25, 2004), modified, 19 Cal. Rptr. 3d 843, 849–50 (Ct. App. 2004), superseded by 152 P.3d 433 (Cal. 2007), vacated on other grounds by 554 U.S. 353 (2008).

The original slip opinion adopted a clear-and-convincing evidence standard, but the modified opinion left resolution of the standard-of-proof issue for another day. Id. The California Supreme Court adopted the preponderance-of-the-evidence standard. 152 P.3d at 446.

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Mastrangelo45 that the burden of proof is a difficult issue because lower federal courts disagree about the applicable standard of proof and Supreme Court precedents on the appropriateness of various standards of proof in other settings are mixed.46 The Second Circuit further acknowledged that an argument could be made that any admissibility determination affecting confrontation should be subject to a clear-and-convincing-evidence test since it is closely related to evidence reliability.47 But the Second Circuit disavowed that analogy because waiver by misconduct involves a different issue.48 The court in Mastrangelo explained: [W]aiver by misconduct is an issue distinct from the underlying right of confrontation and not necessarily governed by the same rules concerning burden of proof. We see no reason to impose upon the government more than the usual burden of proof by a preponderance of the evidence where waiver by misconduct is concerned. Such a claim of waiver is not one which is either unusually subject to deception or disfavored by the law. To the contrary, such misconduct is invariably accompanied by tangible evidence such as the disappearance of the defendant, disruption in the courtroom or the murder of a key witness, and there is hardly any reason to apply a burden of proof which might encourage behavior which strikes at the heart of the system of justice itself.49 The United States Court of Appeals for the District of Columbia Circuit similarly recognized in United States v. White:50 Although the main purpose of the confrontation clause is to ensure the reliability of the evidence, it does not 45. 693 F.2d 269 (2d Cir. 1982).

46. Id. at 273.

47. Id. 48. Id. See generally United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982).

49. Mastrangelo, 693 F.3d at 273 (citation omitted); see also United States v.

Balano, 618 F.2d 624, 629 (10th Cir. 1979), overruled on other grounds by Richardson v. United States, 468 U.S. 317 (1984), as recognized in United States v.

Willis, 102 F.3d 1078 (10th Cir. 1996).

50. 116 F.3d 903 (D.C. Cir. 1997).

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follow that every ruling on every related issue, even if it may expose the defendant to uncross-examined testimony, must rest on clear and convincing evidence. The forfeiture principle, as distinct from the confrontation clause, is designed to prevent a defendant from thwarting the normal operation of the criminal justice system.51 Many state and territorial courts have adopted the reasoning of Mastrangelo and similar federal cases.52 In Steele v. Taylor,53 the United States Court of Appeals for the Sixth Circuit recognized that a preponderance-of-the-evidence standard had been developed to make admissibility determinations under the co-conspirator statement exception to the hearsay rule.54 This was equivalent to a ruling under the Confrontation Clause that such evidence was allowable.55 The Sixth Circuit saw “no logical reason to impose a higher standard on the states in making preliminary findings on procurement in connection with rulings on the admissibility of similar extra-judicial statements.”56 Other courts have reached similar conclusions.57 The First Circuit succinctly explained in United States v. Houlihan,58 “Proving the conditions 51. Id. at 912 (citation omitted).

52. See, e.g., United States v. Burgos-Montes, No. CRIM 06-009 JAG, 2006 WL 3692583, at *4 (D. P.R. Nov. 1, 2006) (adopting the preponderance standard); State v. Valencia, 924 P.2d 497, 502 (Ariz. Ct. App. 1996); State v. Gettings, 769 P.2d 25, 29 (Kan. 1989) (confirmed post-Crawford by State v. Meeks, 88 P.3d 789, 794 (Kan. 2004), overruled on other grounds by State v. Davis, 158 P.3d 317 (Kan. 2006)); State v. Magouirk, 539 So. 2d 50, 65 (La. Ct. App. 1988), withdrawn in part on other grounds by 561 So. 2d 801 (La. Ct. App. 1990); State v. Sheppard, 484 A.2d 1330, 1347–48 (N.J. Super. Ct. Law Div. 1984); State v. Alvarez-Lopez, 98 P.3d 699, 704 (N.M. 2004); State v. Hand, 840 N.E.2d 151, 172 (Ohio 2006); State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006); Commonwealth v. Morgan, 69 Va. Cir. 228, 231–33 (2005); People v. Toussaint, 55 V.I. 419, 423–27 (Super. Ct. 2011); cf. White v. State, 978 N.E.2d 475, 479–82 (Ind. Ct. App. 2012) (looking to federal case law for guidance and applying a preponderance standard, but also noting that the parties agreed that such standard applied).

53. 684 F.2d 1193 (6th Cir. 1982).

54. Id. at 1203.

55. Id. 56. Id.; see also White, 116 F.3d at 912.

57. E.g., United States v. Emery, 186 F.3d 921, 926–27 (8th Cir. 1999); United States v. Mayhew, 380 F. Supp. 2d 961, 968 (S.D. Ohio 2005); Commonwealth v.

Edwards, 830 N.E.2d 158, 173 (Mass. 2005).

58. 92 F.3d 1271 (1st Cir. 1996).

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precedent to the applicability of the coconspirator exception is analytically and functionally identical to proving that a defendant’s wrongdoing waives his rights under the Confrontation Clause.”59 The court then adopted the preponderance-of-the-evidence standard and aligned itself with the majority of federal appellate courts.60 The Massachusetts Supreme Judicial Court thoroughly reviewed the forfeiture-by-wrongdoing doctrine in Commonwealth v.

Edwards.61 The Edwards court recognized that, although essential elements of a crime must be proven beyond a reasonable doubt, preliminary questions of fact and subsidiary facts ordinarily must be proven by only a preponderance of the evidence.62 The court rejected the conclusion reached in Geraci that a clear-and-convincingevidence standard should be used. The Edwards court reasoned that a higher standard of proof would not effectively (1) discriminate between more and less reliable hearsay or (2) deter witness tampering.63 The Supreme Court of the United States later cited Edwards as an example of state-court practices.64 Other jurisdictions have also relied upon the holding in Edwards when adopting a preponderance-of-the-evidence standard.65 In State v. Poole,66 the Supreme Court of Utah similarly found that the general rule—that evidentiary rulings are made using a preponderance standard—is an important factor in determining the appropriate standard of proof in forefeiture-by-wrongdoing cases.67 It recognized the argument that the possible loss of a defendant’s right of confrontation was significant enough to warrant using a clear-andconvincing-evidence standard, but the court was not convinced by this argument.68

59. Id. at 1280.

60. Id. 61. 830 N.E.2d at 165–77.

62. Id. at 172–73.

63. Id. at 173 (citing United States v. White, 116 F.3d 903, 912 (D.C. Cir. 1997), and United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982)). But see State v. Geraci, 649 N.E.2d 817, 821–22 (N.Y. 1995).

64. Davis v. Washington, 547 U.S. 813, 833 (2006).

65. See, e.g., Gatlin v. United States, 925 A.2d 594, 600–01 (D.C. 2007); State v. Byrd, 967 A.2d 285, 303–04 (N.J. 2009).

66. 232 P.3d 519 (Utah 2010).

67. Id. at 526.

68. Id.

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Many courts follow the weight of authority and have adopted a preponderance-of-the-evidence standard.69 Some use a preponderance standard partly because it was adopted by the advisory committee that recommended Federal Rule of Evidence 804(b)(6).70 But some cases adopting the evidentiary rule’s preponderance standard leave open the question of whether a different standard applies to constitutional confrontation questions.71 A few courts have adopted a preponderance standard based on the Supreme Court of the United States’ language in Davis v.

Washington72 that appears to support a preponderance standard. But the Davis court did not take a firm position on the issue.73 While different rationales underlie the various courts’ decisions, the preponderance-of-the-evidence standard is the overwhelming majority rule.

In State v. Thompson,74 the Supreme Court of Connecticut assigned a burden of proof based upon an analysis of the comparative harms of an erroneous decision.75 This method attempts to select a 69. See, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002); United States v. Savage, No. 07-55003, 2013 WL 372947, at *6 (E.D. Pa. Jan. 31, 2013); United States v. Hernandez, No. 0800739 SOM, 2012 WL 1580454, at *4–6 (D. Haw. May 3, 2012); United States v. Rivera, 292 F. Supp. 2d 827, 831 (E.D. Va. 2003) (commenting upon the failure of Thevis to garner more support in the decades since it was decided); People v. Giles, 152 P.3d 433, 445–46 (Cal. 2007), vacated on other grounds by 554 U.S. 353 (2008); Vasquez v. People, 173 P.3d 1099, 1105 (Colo. 2007); State v. Hallum, 606 N.W.2d 351, 355–56 (Iowa 2000); Parker v. Commonwealth, 291 S.W.3d 647, 669 n.55 (Ky. 2009); State v. Jensen, 727 N.W.2d 518, 536 (Wis. 2007).

70. See, e.g., United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005); United States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001); United States v. Savage, No. 0755003, 2013 WL 372947, at *6 (E.D. Pa. Jan. 31, 2013); Commonwealth v.

Edwards, 830 N.E.2d 158, 172 (Mass. 2005); People v. Jones, 714 N.W.2d 362, 368 (Mich. Ct. App. 2006); State v. Alvarez-Lopez, 98 P.3d 699, 704 (N.M. 2004); Jensen, 727 N.W.2d at 536 n.16; see also FED. R. EVID. 804(b)(6) advisory committee’s note.

71. E.g., United States v. Nelson, 242 F. App’x 164, 171 n.2 (5th Cir. 2007); see also United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002) (addressing only the standard applicable to the evidentiary rule).

72. 547 U.S. 813 (2006).

73. See People v. Stechly, 870 N.E.2d 333, 353 (Ill. 2007); State v. Wright, 726 N.W.2d 464, 479 n.7 (Minn. 2007); cf. State v. Mechling, 633 S.E.2d 311, 326 (W. Va. 2006) (indicating that a preponderance standard may be adequate based on a suggestion made in Davis).

74. 45 A.3d 605 (Conn. 2012).

75. Id. at 614–15.

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proof standard that allocates the risk of error in accordance with the relative importance of the ultimate decision.76 The Thompson court determined that a preponderance standard should apply: We reach this conclusion for several reasons. First, the social disutility of an erroneous decision by the trial court that favors the defendant by precluding evidence from an unavailable witness under the clear and convincing standard is much greater than that of an erroneous decision that favors the state by admitting such evidence under the preponderance standard.

Improper preclusion of the evidence under the higher standard would interfere with three significant policy rationales on which the forfeiture doctrine is founded, namely, “to remove any profit that a defendant might receive from his own wrongdoing[,] . . . to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system[,] . . . [and to further] the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony.” Although an erroneous decision to admit evidence under the preponderance standard deprives the defendant of his constitutional right of confrontation, opportunities remain to challenge the admission of the evidence on grounds of reliability or prejudicial effect.77 The court noted that other safeguards are already in place to protect a defendant in the event that a statement is incorrectly admitted, such as the requirement that guilt must be proven beyond a reasonable doubt and the capacity of jurors to decide what weight should be afforded to conflicting evidence.78 The court recognized that no safeguards exist to mitigate the impact of an erroneous exclusion of evidence. The evidence is simply unavailable for consideration by a jury, and the State’s interest in efficient, effective law enforcement is undermined.79 Therefore the court in Thompson 76. Id. at 613.

77. Id. at 614 (citations omitted) (quoting State v. Byrd, 967 A.2d 285, 295 (2009)).

78. Id. at 614–15.

79. Id. at 615.

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was unconvinced that any speculative benefit that might flow from imposition of a higher standard of proof would outweigh the increased costs to effective law enforcement and the truth-seeking process.80 IV.

CLUES TO THE STANDARD PREFERRED BY THE SUPREME COURT

It is difficult to predict what standard the Supreme Court of the United States will ultimately adopt for forfeiture-by-wrongdoing issues. It has given clues, but none are conclusive. In Crawford v.

Washington,81 the Court held that testimonial out-of-court statements are inadmissible unless the witness is unavailable and the defendant had an opportunity to cross-examine the witness.82 In that case, the Court indicated that it accepted the forfeiture-by-wrongdoing doctrine,83 citing Reynolds v. United States.84 Reynolds shifted the burden to the defendant to disprove wrongdoing after “enough had been proven to cast the burden upon him.”85 The Court of Appeals for the Sixth Circuit understood Reynolds as having adopted a preponderance standard.86 But Reynolds does not expressly adopt any particular burden of proof.87 In addition, Crawford indicates only continued acceptance of the forfeiture-by-wrongdoing doctrine without commenting on the scope of the Court’s adherence to Reynolds.88 Lower courts have tried to find clues in the Supreme Court’s decisions in Davis and Giles.89 The District of Columbia Court of Appeals found it significant that Davis “declined to hold that the clear and convincing standard is essential where a defendant has 80. Id. 81. 541 U.S. 35 (2004).

82. Id. at 54.

83. Id. at 62.

84. 98 U.S. 145, 158–59 (1878).

85. Id. at 160; see also Buckman v. Commonwealth, No. 2005-SC-000148-MR, 2007 WL 858815, at *3 (Ky. Mar. 22, 2007).

86. Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982); cf. United States v.

White, 838 F. Supp. 618, 623 (D.D.C. 1993) (commenting that the burden shift in Reynolds signifies that a reasonable-doubt standard does not apply).

87. See Reynolds, 98 U.S. at 158–60.

88. See Crawford, 541 U.S. at 62.

89. See, e.g., People v. Banos, 100 Cal. Rptr. 3d 476, 492 n.12 (Ct. App. 2009); People v. Stechly, 870 N.E.2d 333, 353 (Ill. 2007); State v. Wright, 726 N.W.2d 464, 479 n.7 (Minn. 2007).

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invoked his constitutional confrontation right.”90 Similarly, the California Court of Appeals commented that the concurrence by Justice Souter in Giles “assumes that the standard is one of preponderance.”91 But only one other justice joined Justice Souter’s opinion in Giles, and Justice Souter only mentioned a preponderance standard in passing to make another point—that equity requires something more than circularity for forfeiture to apply.92 The comments made in Davis should not be heavily relied upon because the Supreme Court of the United States indicated only that it was avoiding the issue when it wrote, “We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard. State courts tend to follow the same practice.”93 Supreme Court cases adopting proof standards in other situations can be instructive, but they have limited utility. For example, the forefeiture-by-wrongdoing doctrine may be compared to the rule adopted for admission of tainted identification evidence.94 But any similarities between the admissibility of tainted identification evidence and statements under the forfeiture-by-wrongdoing rule depend more on how the question is framed than on any true equivalency. It may be argued that the Supreme Court has conditioned admissibility on a clear-and-convincing standard when the reliability of evidence is a primary concern.95 But the forfeitureby-wrongdoing doctrine “does not purport to be an alternative means of determining reliability.”96 Therefore, the strength of any analogy depends upon ignoring the purposes behind the forfeiture-bywrongdoing doctrine and instead framing the question as one involving only a general policy underlying the Confrontation Clause.97

90.

91.

92. part).

93.

94.

95.

96.

97.

Gatlin v. United States, 925 A.2d 594, 601 (D.C. 2007).

Banos, 100 Cal. Rptr. 3d at 492 n.12.

Giles v. California, 554 U.S. 353, 379 (2008) (Souter, J., concurring in Davis v. Washington, 547 U.S. 813, 833 (2006) (citations omitted).

See United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982).

Id. Crawford v. Washington, 541 U.S. 36, 62 (2004).

See Thevis, 665 F.2d at 631.

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Moreover, the practices mandated by the Supreme Court in United States v. Wade98 for admission of in-court identification evidence after a tainted out-of-court identification have no actual correlation to the forfeiture-by-wrongdoing doctrine.99 The clear-andconvincing-evidence standard adopted by the Supreme Court in Wade places the burden on the government to demonstrate purge of a primary taint after it engaged in illegality which caused identification evidence to become suspect.100 The forfeiture-by-wrongdoing doctrine does not seek to salvage admissibility by curing governmental misconduct. Instead, the doctrine addresses defendant misconduct and “‘has its foundation’ in the principle that no one should be permitted to take advantage of his wrong, and is ‘the outgrowth of a maxim based on the principles of common honesty.’”101 Comparisons between the forfeiture-by-wrongdoing doctrine and the co-conspirator statement rule likewise deserve careful consideration. When the Supreme Court endorsed a preponderanceof-the-evidence standard for the co-conspirator statement rule, it was analytically and functionally equivalent to the forfeiture rule.102 Both constituted confrontation exceptions.103 While the purposes and practical effects of both rules remain unchanged, the constitutional justification underlying each has diverged post-Crawford. Forfeiture by wrongdoing endures as an equitable exception to the right of confrontation.104 But the coconspirator rule is no longer a de jure confrontation exception.

Admissibility of co-conspirator statements is constitutionally justified post-Crawford on the basis that statements made during the course of a conspiracy are almost always considered non-testimonial and 98. 388 U.S. 218 (1967).

99. See United States v. Hernandez, No. 08-00739-SOM, 2012 WL 1580454, at *5 (D. Haw. May 3, 2012).

100. See Wade, 388 U.S. at 239–41.

101. Giles v. California, 554 U.S. 353, 366 (2008) (citation omitted) (quoting Reynolds v. United States, 98 U.S. 145, 159 (1879)).

102. See Bourjaily v. United States, 483 U.S. 171, 175–76 (1987); United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996).

103. See Bourjaily, 483 U.S. at 181–82 (co-conspirator statement rule); Reynolds, 98 U.S. at 158 (forfeiture-by-wrongdoing doctrine); see also Steele v.

Taylor, 684 F.2d 1193, 1203 (6th Cir. 1982) (“[T]he question of admissibility of . . . statements under the co-conspirator exception is equivalent to a ruling on their admissibility under the confrontation clause . . . .”).

104. Crawford v. Washington, 541 U.S. 36, 62 (2004).

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therefore qualify under a de facto confrontation exemption.105 Since Crawford, the forfeiture-by-wrongdoing doctrine decides a constitutional confrontation question while the co-conspirator statement rule decides only an evidentiary question that may, or may not, determine an adjunct constitutional question about whether an out-of-court statement falls outside the scope of the Confrontation Clause.106 “The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.”107 Comparisons are therefore useful but not perfect.

The Supreme Court’s clearest signal about the position it might adopt for the forfeiture proof standard may be its repeated mention of Federal Rule of Evidence 804(b)(6). While not taking a position on a standard of proof, the Court commented in Davis that the rule codifies the forfeiture doctrine.108 The Court later said in Giles that “[w]e have described this as a rule ‘which codifies the forfeiture doctrine,’” and the Court relied on its understanding of the rule to help define the substantive requirements of the doctrine for purposes of forfeiture of the constitutional right to confrontation.109 The rule, which was adopted by the Supreme Court, “adheres to the usual Rule 104(a) preponderance of the evidence standard for preliminary questions.”110 While not bound by its rule-making actions or the position taken in Giles, it would certainly be contradictory if the Supreme Court disregarded requirements applicable to Federal Rule of Evidence 804(b)(6) when answering procedural questions about the forfeiture-by-wrongdoing doctrine after having resorted to those requirements when answering substantive questions.

105. See Giles v. California, 554 U.S. 353, 374 n.6 (2008) (Scalia, J., writing separately).

106. Compare United States v. Farhane, 634 F.3d 127, 162–63 (2d Cir. 2011) (finding that certain co-conspirator statements were non-testimonial and therefore exempted from the Confrontation Clause), with United States v. Logan, 419 F.3d 172, 178–79 (2d Cir. 2005) (finding that certain statements made in furtherance of a conspiracy were testimonial).

107. Giles, 554 U.S. at 375 n.6.

108. Davis v. Washington, 547 U.S. 813, 833 (2006).

109. Giles, 554 U.S. at 367 (quoting Davis, 547 U.S. at 833).

110. SUPREME COURT OF THE U.S., AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE, H.R. DOC. NO. 105-69, at 13 (1997) (Report of the Advisory Committee on Evidence Rules); see also FED. R. EVID. 804(b)(6) advisory committee’s note.

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JUSTICE HARLAN’S SOCIAL-DISUTILITY SCALE

The second Justice John Marshall Harlan wrote in his concurrence to In re Winship111 that the choice of a standard of proof reflects a “fundamental assessment of the comparative social costs of erroneous factual determinations.”112 Justice Harlan stated that the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. . . . [A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.113 Despite best efforts, a factfinder will sometimes reach conclusions that are incorrect. Since the standard of proof affects the relative frequency of an erroneous outcome favoring one party over another pertaining to a contested question, the choice of the standard to be applied in a particular situation “should, in a rational world, reflect an assessment of the comparative social disutility of each.”114 Some might tip the scales when addressing the burden of proving forfeiture by focusing solely upon the importance of the confrontation right.115 It is indisputable that confrontation is both an essential ingredient and a fundamental requirement of a fair trial because it helps ensure the integrity of the truth-determining process.116 It “forces [a] witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’”117 But the forfeiture-by-wrongdoing doctrine is not merely a tool to introduce less trustworthy evidence or to facilitate easier convictions.

111. 397 U.S. 358 (1969).

112. Id. at 369–70 (1969) (Harlan, J., concurring).

113. Id. at 370.

114. Id. at 371.

115. See, e.g., State v. Mason, 162 P.3d 396, 404–05 (Wash. 2007), abrogated

by Giles v. California, 554 U.S. 353 (2008), as recognized in State v. Dobbs, 320 P.3d 705 (Wash. 2014); Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 ISR. L. REV. 506, 519–20 (1997).

116. Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

117. California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 JOHN HENRY WIGMORE, EVIDENCE § 1367 (3d ed. 1940)).

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It protects the “integrity of the criminal-trial system.”118 It also “recognizes the need for a prophylactic rule to deal with abhorrent behavior ‘which strikes at the heart of the system of justice itself.’”119 The forfeiture-by-wrongdoing doctrine is therefore also rooted in an important value.

The importance of the interest at stake has relevance under the social-disutility scale, but it is not wholly decisive regarding the proper standard of proof. “Rules of procedure may be shaped by consideration of the risks of error and should also be shaped by the consequences which will follow their adoption.”120 In Lego v.

Twomey,121 the Supreme Court noted that it was unconvinced that merely emphasizing the importance of the values served by exclusion of involuntary confessions was itself sufficient to demonstrate that the Constitution required admissibility of a confession to be proven by a standard more stringent than a preponderance.122 The right against self-incrimination has no less constitutional importance than the right of confrontation—both are memorialized in the Constitution.123 In practice, a confession is much more devastating proof of guilt than an out-of-court statement made by a missing witness: a confession is an admission rather than a mere third-party accusation. Despite the importance of the right against selfincrimination, the Lego Court nonetheless held that the voluntariness of a confession, and thus its admissibility, could be decided using a preponderance-of-the-evidence standard.124 The Court in Lego recognized that “[a] guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard.”125 In addition to evaluating the social consequences of erroneous decisions, the disutility scale looks at “the potential that a wrong decision will eventually be corrected or its impact mitigated.”126 Therefore, discussion that consists of nothing more than a conclusory 118. Davis v. Washington, 547 U.S. 813, 833 (2006); see also Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982).

119. FED. R. EVID. 804(b)(6) advisory committee’s note (quoting United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982)).

120. Wolff v. McDonnell, 418 U.S. 539, 567 (1974) (citations omitted).

121. 404 U.S. 477 (1972).

122. Id. at 487–89.

123. U.S. CONST. amends. V, VI. 124. Lego, 404 U.S. at 489.

125. Id. at 487.

126. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 283 (1990).

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mantra about the importance of either the right of confrontation or the values protected by the forfeiture doctrine does not provide meaningful analysis of the burden of proof that should apply to forfeiture questions.127 Justice Harlan’s scale attempts to measure the impact that an erroneous decision has on the impaired interest in relation to its social importance—but only after also considering the actual consequences of a mistake and how its severity might be minimized.128 Justice Harlan’s social disutility scale has been repeatedly used by the Supreme Court to determine an appropriate standard of proof.129 Although the Court of Appeals of New York in Geraci and the Supreme Court of Connecticut in Thompson reached different conclusions, both courts applied Justice Harlan’s social disutility model to decide the standard of proof applicable to confrontation forfeiture by wrongdoing.130 Each attempted to assess the disutility caused by an erroneous decision under the forfeiture doctrine.131 The justice system is designed to try to reach the right decision.

No one likes advertising that, in reality, some judicial determinations are wrong. It is more palatable to pretend that a proof standard reduces the occurrence of mistakes. But the costs of being wrong should not be ignored in either direction. This focus on error is the core of Justice Harlan’s social-disutility analysis because “[a] heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties.”132 “The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.”133 That risk cannot be fairly allocated 127. Cf. United States v. Rivera, 292 F. Supp. 2d 827, 831 (E.D. Va. 2003) (citing United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982)) (commenting that the conclusory reasoning in Thevis—that a preponderance standard is not sufficiently rigorous to protect a defendant’s confrontation right—was unpersuasive).

128. See Santosky v. Kramer, 455 U.S. 745, 786–87 (1982) (Rehnquist, J., dissenting) (citing In re Winship, 397 U.S. 358, 370–71 (1970) (Harlan, J., concurring)).

129. See, e.g., id. at 754–68; Addington v. Texas, 441 U.S. 418, 423–33 (1979).

130. See State v. Thompson, 45 A.3d 605, 613–15 (Conn. 2012) (citing State v.

James, 678 A.2d 1338 (Conn. 1996)); People v. Geraci, 649 N.E.2d 817, 822 (N.Y. 1995) (citing In re Winship, 397 U.S. at 370).

131. See Thompson, 45 A.3d at 614; Geraci, 649 N.E.2d at 821–23.

132. Cooper v. Oklahoma, 517 U.S. 348, 366 (1996) (citing Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 283 (1990)).

133. Cruzan, 497 U.S. at 283.

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when the possibility of error on only one side of the equation is considered.

An incorrect forfeiture determination does cause a significant constitutional deprivation. The importance of the interest at stake has grown since Crawford. Before Crawford, confrontation was thought mainly to protect the reliability of evidence.134 Depending upon the nature of an out-of-court statement, it could be argued pre-Crawford that the severity of the damage caused by the statement’s erroneous admission decreased in direct proportion to its reliability. In other words, erroneous admission of an extremely reliable out-of-court statement arguably caused little damage to a defendant’s right of confrontation because that right only protects against introduction of unreliable evidence. But confrontation after Crawford focuses on the process rather than the product. “It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”135 Therefore, the intrinsic value lost by errant forfeiture of a defendant’s right to confront a witness post-Crawford is no less when the evidence for which admission is sought is entirely trustworthy because it is nonetheless untested and therefore constitutionally deficient.

An inaccurate finding of forfeiture eliminates any confrontation and hearsay objections that a defendant may have regarding admission of an out-of-court statement.136 A defendant has been deprived of not only a chance to cross-examine the witness but also, in instances where an out-of-court statement is unsworn, the protection of having that witness submit testimony under oath, which both impresses the seriousness of a matter upon a witness and uses the possibility of perjury penalties to guard against lying.137 The defendant has additionally lost an opportunity to have the jury 134. See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (holding that confrontation requirements were met for an out-of-court statement if a witness was unavailable and the statement either fell within a firmly rooted hearsay exception or there were indicia of the statement’s reliability), overruled by Crawford v. Washington, 541 U.S. 36 (2004).

135. Crawford, 541 U.S. at 61 (2004).

136. See, e.g., United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005); United States v. White, 116 F.3d 903, 912–13 (D.C. Cir. 1997); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); Devonshire v. United States, 691 A.2d 165, 169 (D.C. 1997). But see People v. Giles, 152 P.3d 433, 446–47 (Cal. 2007) (hearsay objections preserved despite confrontation forfeiture), vacated on other grounds, 554 U.S. 353 (2008).

137. See California v. Green, 399 U.S. 149, 158 (1970).

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observe the courtroom demeanor of the witness.138 A defendant whose right to confront a witness has been taken away by an incorrect forfeiture determination has lost the opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.139 Assuming for purposes of Justice Harlan’s social-disutility analysis that a forfeiture decision was wrong and the witness’s absence was not caused by tampering, the possibility must be entertained that the reason the witness did not appear was to avoid giving false testimony. “It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’”140 An erroneous forfeiture determination, however, “does not result in the automatic surrender of all evidentiary objections.”141 Finding forfeiture does not “mean that the declarant’s statements will be admitted automatically.”142 A court may still need to balance probative value against prejudicial effect, despite confrontation forfeiture, before an out-of-court statement can be admitted.143 If an out-of-court statement is facially unreliable, “it is hard to imagine circumstances in which such evidence would survive [Federal Rule of Evidence] 403’s test of weighing probative value against prejudicial effect, an objection that is not waived by procuring a

138. Id. 139. Mattox v. United States, 156 U.S. 237, 242–43 (1895).

140. Coy v. Iowa, 487 U.S. 1012, 1019 (1988).

141. United States v. Houlihan, 92 F.3d 1271, 1282 n.6 (1st Cir. 1996).

142. United States v. Dhinsa, 243 F.3d 635, 655 (2d Cir. 2001); see also United States v. Carlson, 547 F.2d 1346, 1360 n.14 (8th Cir. 1976).

143. Dhinsa, 243 F.3d at 655–56; United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994); United States v. Thevis, 665 F.2d 616, 633 n.17 (5th Cir. 1982); State v.

Thompson, 45 A.3d 605, 614 (Conn. 2012) (quoting United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992)). But see United States v. White, 116 F.3d 903, 913 (D.C. Cir. 1997) (requiring a defendant to move for exclusion under FED. R. EVID. 403 before error can be based on a trial court’s failure to balance probative value against prejudicial effect).

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witness’s absence.”144 Therefore, opportunities remain for a court to fix or mitigate its mistaken forfeiture decision by further considering other evidentiary questions.

Furthermore, an incorrect forfeiture decision by a judge may admit evidence, but it does not determine guilt. The Thompson court explained: An ultimate decision relating to personal autonomy is qualitatively different from a preliminary factual determination regarding the admission of testimony by an unavailable witness, which does not constitute a final decision on the merits and is only one of many pieces of evidence that the fact finder must consider in determining the defendant’s ultimate guilt.145 While any incorrect decision regarding evidence admissibility is undesirable, the error does not dictate the outcome of a case.

Defendants who wrongly lose their right of confrontation remain protected by the presumption of innocence and the ultimate burden of proof in a criminal case. Those rights are not infringed “because the jury ‘will never learn of the judge’s preliminary finding’ and ‘will use different information and a different standard of proof to decide the defendant’s guilt.’”146 Therefore, despite any evidentiary error that a judge makes, a jury still serves as a check and balance because the jury must determine guilt beyond a reasonable doubt based on all of the evidence admitted on behalf of both parties.

In addition, erroneous forfeiture does not result in a complete divestiture of a defendant’s right of confrontation. The defendant retains the right to cross-examine all witnesses other than the absent declarant, including the subscribing witness who attests to the content and circumstances of an out-of-court statement.147 An incorrect forfeiture decision does not assign weight to the evidence wrongly

144. Aguiar, 975 F.2d at 47. But see John R. Kroger, The Confrontation Waiver Rule, 76 B.U. L. REV. 835, 859–64 (1996) (opining that Rule 403 is inadequate to provide reliability review).

145. Thompson, 45 A.3d at 616–17.

146. People v. Giles, 152 P.3d 433, 445 (Cal. 2007) (quoting United States v.

Mayhew, 380 F. Supp. 2d 961, 968 (S.D. Ohio 2005)), vacated on other grounds, 554 U.S. 353 (2008).

147. See Thompson, 45 A.3d at 611–12.

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admitted.148 That is left to the jury, and a defendant remains able to familiarize the jury with facts bearing upon credibility and weight.149 Academics may consider the wrongful partial loss of a person’s right of confrontation to be intolerable. But in practice, an out-ofcourt statement made by a missing witness ranks among the easiest types of proof upon which to cast doubt. For example, the memory of a subscribing witness can be challenged, and the alleged content of an unrecorded statement may be discredited by asking that witness if he or she can repeat the testimony of an immediately preceding witness word for word. The subscribing witness will either admit his or her fallibility—or fail miserably trying to demonstrate perfection when his or her memory is compared to the court reporter’s notes.

Even recorded statements can be effectively discounted by (1) attacking the motives and state of mind of the missing person who made the statement, because they cannot be rebutted by the absent witness, and (2) questioning the accusatorial bias of the investigator who took the statement. There is no uniform approach, and these particular techniques are not always effective in every case. But the techniques are not exclusive and do demonstrate that improper admission of evidence is not tantamount to its acceptance as fact.

Therefore, a defendant who has suffered an incorrect forfeiture determination still has tools available to mitigate the harm. The deprivation created by an erroneous decision admitting evidence under the confrontation-forfeiture doctrine is substantial, but the actual extrinsic damage is not insurmountable.

In contrast, the erroneous exclusion of a statement made by a witness who the defendant tampered with completely wipes out that proof. It is a loss that can weaken or decimate a case.150 It also cannot be mitigated by familiarizing the jury with considerations regarding its credibility and weight. The prosecution must accept the ruling and cannot try to counteract it by using other means to make the jury aware of proof that is not in the record.151 Once excluded, no mention may be made of the evidence. The erroneous decision incurably 148. Id. at 615.

149. Id. (quoting State v. James, 678 A.2d 1338, 1356 (Conn. 1996)).

150. See id. at 614–15.

151. See, e.g., United States v. Maddox, 156 F.3d 1280, 1282–84 (D.C. Cir. 1998); United States v. Murrah, 888 F.2d 24, 26–27 (5th Cir. 1989). See generally Berger v. United States, 295 U.S. 78, 84–85 (1935) (discussing prosecutorial misconduct in the context of a prosecutor’s attempt to introduce evidence not on the record).

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damages the truth-seeking function of the adversarial process by depriving factfinders of access to valuable evidence.152 An incorrect forfeiture determination excluding evidence additionally allows a defendant to “mock the very system of justice the confrontation clause was designed to protect.”153 There are no adverse consequences for a defendant who successfully tampers with a witness when a court wrongly decides against confrontation forfeiture. As a practical matter, a prosecutor is not going to separately charge a defendant with tampering after a court has made an evidentiary ruling that the prosecution could not establish the offense. More importantly, the forfeiture doctrine applies to misconduct that “need not consist of a criminal act.”154 An erroneous ruling allowing a defendant to get away with non-criminal misconduct does not hold even a slim hope that the defendant might be held accountable at a later date. The decision confers the profit sought by the defendant’s wrongdoing.155 An erroneous decision denying forfeiture also puts other witnesses at risk for future tampering. “In certain types of criminal cases, witness intimidation appears to be nothing short of a nationwide pandemic.”156 Cases involving gang-related crimes or domestic violence present situations where a criminal enterprise or course of conduct is usually continuing.157 They are situations where the same people may be repeatedly asked to come to court as witnesses against different defendants or even the very same defendant. They are cases where the elimination of a witness sends a 152. See Commonwealth v. Edwards, 830 N.E.2d 158, 167 (Mass. 2005); Thompson, 45 A.3d at 614; State v. Byrd, 967 A.2d 285, 296 (N.J. 2009) (quoting Davis v. Washington, 547 U.S. 813, 833 (2006)).

153. United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982); see also United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982); United States v.

Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976) (quoting Diaz v. United States, 223 U.S. 442, 458 (1912)).

154. Edwards, 830 N.E.2d at 170; FED. R. EVID 804(b)(6) advisory committee’s note; see also Commonwealth v. Szerlong, 933 N.E.2d 633, 640 (Mass. 2010).

155. See United States v. Gray, 405 F.3d 227, 241–42 (4th Cir. 2005); Thompson, 45 A.3d at 614.

156. Byrd, 967 A.2d at 297.

157. See, e.g., Tim Donaldson & Karen Olson, “Classic Abusive Relationships” and the Inference of Witness Tampering in Family Violence Cases After Giles v.

California, 36 LINCOLN L. REV. 45, 81, 84–87 (2008) (reviewing the sociological data regarding the continuing pattern of abuse in domestic-violence relationships).

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loud message to other witnesses.158 They are cases where an intimidated witness is less likely to even come forward once a defendant gets off scot-free. “The primary reasoning behind [the forfeiture-by-wrongdoing doctrine] is obvious—to deter criminals from intimidating or ‘taking care of’ potential witnesses against them.”159 The deterrent effect of the forfeiture doctrine is wholly undermined by an erroneous decision excluding evidence.

An erroneous forfeiture determination is undesirable from any perspective. An erroneous decision admitting evidence deprives a defendant of the constitutional right to confront the absent declarant.

An erroneous decision excluding evidence undermines the system of justice that the Confrontation Clause complements. But an ability to mitigate harm arises only with erroneous decisions admitting evidence. The harm is substantial when an incorrect decision impairs a defendant’s right of confrontation, but other protections remain.

Other evidentiary objections to an out-of-court statement may still be made, the credibility and weight given to the statement may still be attacked, and guilt must still be proven beyond a reasonable doubt.

An incorrect decision excluding evidence has greater finality. The excluded proof is considered legally non-existent, there is no consequence for the defendant’s wrongdoing, and the likelihood of future tampering is exponentially increased.

VI.

CONCLUSION

When admissibility determinations hinge on preliminary factual questions, the Supreme Court of the United States has “traditionally required that these matters be established by a preponderance of proof.”160 This is because a court is not concerned with whether a party wins or loses a case but instead whether technical issues regarding admissibility have been satisfied.161 “Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case or a civil case.”162 The Supreme Court has endorsed usage of a preponderance standard in a variety of settings where an admissibility determination affects a constitutional right.163 158. See Byrd, 967 A.2d at 297–98.

159. United States v. Thompson, 286 F.3d 950, 962 (7th Cir. 2002).

160. Bourjaily v. United States, 483 U.S. 171, 175 (1987).

161. See id.

162. Id. (citation omitted).

163. Cf. id. at 175–76, 181–82 (adopting a preponderance standard for the coconspirator statement evidentiary rule and indicating that those requirements are

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The Giles Court limited the forfeiture-by-wrongdoing doctrine to instances where it is shown both that a defendant is responsible for the absence of a witness and that the purpose behind a defendant’s misconduct was to prevent the witness from testifying.164 The Supreme Court of Utah correctly recognized in State v. Poole165 that two of the elements needed to demonstrate forfeiture, “the wrongful conduct and the defendant’s subjective intent in engaging in the conduct—are particularly difficult to prove.”166 The Poole court concluded that “an increase in the standard to clear and convincing evidence could undermine the policy behind the forfeiture-bywrongdoing doctrine by making the prosecution’s burden so high that it can be met in only the most egregious cases of witness tampering or intimidation.”167 There can be no denying the importance of the right of confrontation. “[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.”168 But integrity of the system is also essential to a fair trial. The preponderance-of-theevidence standard recognizes the importance of both the right of confrontation and the ability of the nation’s courts to protect the integrity of their proceedings. It equally allocates the risk of an erroneous forfeiture decision. There are those who will nonetheless assert that the right of confrontation should trump any other concerns. “‘But justice, though due the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’”169

identical to the Confrontation Clause requirements under the Sixth Amendment); United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (stating that consent to search, and thus loss of objection under the Fourth Amendment to the admissibility of evidence discovered during the search, need be proven only by a preponderance of the evidence); Lego v. Twomey, 404 U.S. 477, 484, 488–89 (1972) (requiring under the Fifth Amendment that the prosecution show by a preponderance of the evidence that self-incrimination was voluntary).

164. Giles v. California, 554 U.S. 353, 359–68 (2008).

165. 232 P.3d 519 (Utah 2010).

166. Id. at 526.

167. Id. 168. Pointer v. Texas, 380 U.S. 400, 405 (1965).

169. United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976) (quoting Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)).

JUDICIAL RESPONSES TO CHALLENGES TO FIREARMS-IDENTIFICATION EVIDENCE: A NEED FOR NEW JUDICIAL PERSPECTIVES ON FINALITY SARAH LUCY COOPER* ABSTRACT There have been 329 post-conviction DNA exonerations in America to date. Forty-seven percent of these wrongful convictions are attributable, in some way, to unreliable forensic evidence being used against the defendant, including unreliable firearmsidentification evidence. Some firearms examiners testify that they can match tool-marks produced by a suspect weapon to suspect ammunition, but in recent years such claims—termed individualization—have been significantly undermined, including by the National Research Council. However, challenges concerning the veracity of such evidence are routinely rejected by the courts. In so ruling, courts rely on two particular finality interests: namely preventing a flood of frivolous claims and incentivizing defense counsel to get it right the first time. This Article argues that this pattern in judicial reasoning is problematic. This is because it overlooks the struggle both jurors and lawyers have when it comes to accurately engaging with scientific evidence: Jurors are generally not science-literate, but they are nevertheless science-thirsty with inflated expectations of scientific theory and a tendency to find comfort in alleged expert certainty. Lawyers, on the other hand, have blunt tools to handle scientific evidence, including their restricted scientific knowledge, limited resources, and low-impact adversarial arsenal. This Article explores these struggles and encourages judges to rethink their reliance on finality when faced with challenges concerning the veracity of firearms-identification evidence.

* Sarah Lucy Cooper is a Senior Lecturer in Law at the Centre for American Legal Studies at Birmingham City University in England. The author gives many thanks to Aimee Martin for her excellent research assistance, Amna Nazir for her ever-impressive citation skills, Marika Henneberg for her very helpful peer review and comments, and Dr. Haydn Davies and Terri Smith for their encouragement.

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TABLE OF CONTENTS I.INTRODUCTION ............................................................................... 458 II. THE THEORY OF FINALITY ........................................................... 461 III. FIREARMS IDENTIFICATION, CRITICISM, AND THE INITIAL CONSERVATIVE SHIFT IN JUDICIAL DECISION-MAKING ............ 464 IV. JUDICIAL RESPONSES TO CHALLENGES TO FIREARMSIDENTIFICATION EVIDENCE, THE INFLUENCE OF FINALITY, AND ITS IMPLICATIONS ...................................................................... 470 A. Preventing a Flood of Frivolous Claims .......................... 470 B. Incentivizing Defense Counsel .......................................... 478 V. CONCLUSION ................................................................................ 486 I.

INTRODUCTION

Firearms-identification evidence has been admitted into American courtrooms since the early 1990s.1 Firearms identification is premised on the notion that a weapon leaves unique tool-marks on the ammunition it fires and that these marks are reproduced each time the weapon is discharged.2 Using these markings, many firearms examiners believe they can conclude that a particular gun fired a particular bullet “to the exclusion of all other[s].”3 Such claims are termed individualization.4 However, in its 2009 landmark report— Strengthening Forensic Science in the United States: A Path Forward (Forensic Science Report)—the National Research Council (NRC) raised significant concerns about this discipline’s scientific underpinnings.5 The report coincided with, and in some instances propelled, efforts by numerous American courts to discourage 1. See Bonnie Lanigan, Firearms Identification: The Need for a Critical Approach to, and Possible Guidelines for, the Admissibility of “Ballistics” Evidence, 17 SUFFOLK J. TRIAL & APP. ADVOC. 54, 54 (2012).

2. See Donald E. Shelton, Twenty-First Century Forensic Science Challenges for Trial Judges in Criminal Cases: Where the “Polybutadiene” Meets the “Bitumen,” 18 WIDENER L.J. 309, 335–36 (2009).

3. Adina Schwartz, Challenging Firearms and Toolmark Identification—Part One, CHAMPION, Oct. 2008, at 14.

4. COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY., NAT’L RESEARCH COUNCIL OF THE NAT’L ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 7 (2009) [hereinafter FORENSIC SCIENCE REPORT].

5. Id. at 155.

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individualization testimony and curtail the language experts use to connect weapons to suspect ammunition.6 These courts began instructing firearms experts to replace matches and degrees of certainty with descriptions of observations and phrases such as more likely than not.7 In light of this conservative shift by some courts, and along with increased national initiatives towards improving the use and reliability of forensic science since 2009,8 it is unsurprising that defendants have continued to challenge firearms-identification evidence admitted against them at trial. However, some trial courts still allow experts to testify unfettered, and appellate courts routinely reject challenges to that testimony.9 The obvious reason for this pattern in judicial decision-making is finality. Judges and scholars routinely argue that restricting postconviction review and increasing the finality of judgments benefits society.10 The term finality is “shorthand for a collection of interests scholars assume are furthered by any restrictions on review.”11 These interests include ensuring respect for criminal judgments, conserving state resources, furthering the efficiency and deterrent and educational functions of criminal law, satisfying the human need for 6. See, e.g., United States v. Glynn, 578 F. Supp. 2d 567, 568–69 (S.D.N.Y. 2008); United States v. Diaz, No. CR 05-00167 WHA, 2007 WL 485967, at *1, *14 (N.D. Cal. Feb. 12, 2007); United States v. Monteiro, 407 F. Supp. 2d 351, 355–57 (D. Mass. 2006); United States v. Green, 405 F. Supp. 2d 104, 109–10 (D. Mass. 2005).

7. See cases cited supra note 6.

8. See generally Dep’t of Justice Office of Pub. Affairs, U.S. Departments of Justice and Commerce Name Experts to First-Ever National Commission on Forensic Science, U.S. DEP’T OF JUST. (Jan. 10, 2014), http://www.justice.gov/opa/ pr/2014/January/14-at-029.html (discussing the creation of the National Commission on Forensic Science, whose members “will work to improve the practice of forensic science and the criminal justice system” and “to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification”); Forensic Science and Standards Act of 2014, S. 2022, 113th Cong. (2014) (introducing a bill, which was not enacted, aimed at improving forensic science by encouraging research, adopting standards, and creating accreditation requirements).

9. See United States v. Casey, 928 F. Supp. 2d 397, 400 (D.P.R. 2013) (“allowing the unfettered testimony of qualified ballistics experts”).

10. Andrew Chongseh Kim, Beyond Finality: How Making Criminal Judgments Less Final Can Further the “Interests of Finality,” 2013 UTAH L. REV. 561, 563 (2013).

11. Id. at 568.

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closure, incentivizing defense counsel to “get it right first time” and preventing a flood of frivolous claims from masking the fewer, credible ones.12 These latter two interests are prominent in post-2009 cases where courts have rejected challenges concerning firearms-identification evidence. In relation to preventing frivolous claims from flooding the system, courts often conclude that the admission of such evidence was non-prejudicial in light of other evidence against the defendant.

In other words, courts are terming the legally sound or unsound admission of firearms-identification evidence as immaterial.

However, this rationale arguably overlooks the high impact scientific evidence has on jurors and the difficulty they have in accurately evaluating scientific evidence. In relation to incentivizing defense counsel, the courts emphasize the importance of the adversarial system—defense counsel’s ability to weed out frailties in forensic evidence via cross-examination. But again, this view arguably overlooks the difficulties lawyers have in resourcing, making, and understanding challenges to forensic evidence.

This Article examines the conflict between finality interests and the impact of firearms-identification evidence. Part II outlines the theory of finality. Part III considers the process of firearms identification, the recent criticism aimed at it, and the initial conservative shift in judicial approaches to firearms-identification evidence. Part IV reviews recent judicial responses to challenges to admitting this evidence by highlighting the influence and implications of finality on judicial decision-making. Part IV will also expand upon how jurors and lawyers engage with forensic evidence in order to demonstrate how the courts, by favoring finality, are arguably overlooking the difficulties these groups have in handling such evidence. Part V concludes that the courts should consider taking new perspectives on these finality interests and more meaningfully consider the issues that arise when law consumes forensic science in this way.

12. See id. at 563 (preventing error, increasing certainty, and improving the quality of representation); Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 452 (1963) (ensuring justice has been done); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 159 (1970) (imposing heavier burdens to prove reversible error); Carrie Sperling, When Finality and Innocence Collide, in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 139, 144 (Sarah Lucy Cooper ed., 2014) (conserving judicial and economic resources).

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II. THE THEORY OF FINALITY The main reason courts routinely reject challenges to firearmsidentification evidence is finality. The concept of finality developed out of a taxonomy detailed by Professor Paul M. Bator in his landmark 1963 article—Finality in Criminal Law and Federal Habeas Corpus for State Prisoners.13 Professor Bator “laid the intellectual groundwork for the Supreme Court’s posttrial review jurisprudence and has been cited in hundreds of law review articles and court opinions. Bator argued that the finality of criminal judgments serves important interests that are harmed by expansions of posttrial rights.”14 The term “‘finality’ is shorthand for a collection of interests scholars assume are furthered by any restrictions on review.”15 These interests include ensuring respect for criminal judgments; conserving state resources; furthering the efficiency, deterrent, and educational functions of criminal law; satisfying the human need for closure; incentivizing defense counsel to get it right the first time; and preventing a flood of frivolous claims from masking the fewer, credible ones.16 These latter two interests are prominent in post-2009 cases where courts have rejected challenges to the admissibility of firearms-identification evidence.

Finality is believed to provide significant benefits, but when finality is employed as a monolithic “trump card” by judges, it may encourage an abuse of process.17 When considering appeals, judges must balance society’s interests in finality against defendants’ rights.18 Notably, finality serves the interests of defendants too: their interests in moving on in their lives and not being subject to repetitive trials that wear down their resources and stamina.19 Yet the scales are not commonly tipped in favor of defendants, and finality is often used as a “trump card that presumptively outranks defendants’ interests.”20 For example, the Supreme Court of the United States has 13. See Kim, supra note 10, at 568 (citing Bator, supra note 12, at 451–53).

14. Id. (footnote omitted).

15. Id. 16. See sources cited supra note 12.

17. See Kim, supra note 10, at 572–73.

18. Id. at 566.

19. Laurie L. Levenson, Searching for Injustice: The Challenge of Postconviction Discovery, Investigation, and Litigation, 87 S. CAL. L. REV. 545, 552–53 (2014).

20. Kim, supra note 10, at 573 (footnote omitted).

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gone so far as to deny a defendant access to DNA evidence that could prove his innocence based, in part, on the assumption that it would harm the unspecified “traditional [interest in] finality.”21 As Professor Laurie Levenson states, “The criminal justice system is obsessed with finality. While it professes to focus on obtaining fair and accurate results, the goal of finality is never far away.”22 Finality has a significant influence on legal discourse. Judges and scholars routinely assert that restricting defendants’ post-conviction arsenal benefits society. Courts have been criticized for not expanding on how finality benefits society, with some even arguing that such restrictions can “harm the very interests increased finality is presumed to protect.”23 Restrictions on posttrial review, while conserving judicial and prosecutorial resources, may nonetheless harm society by preventing wrongful incarcerations from being remedied, have no beneficial effects on the quality of legal representation for defendants, and increase recidivism.24 Judges are supposed to weigh these interests singularly and not view finality as a “monolithic interest of presumptive importance.”25 But this is often not the case—many courts rationalize their judgments with a simple reference to a general societal interest in finality. And some courts make no mention of the concept at all.

This identifiable pattern, although indirect, can be found in post2009 cases where courts have rejected challenges to the admissibility of firearms-identification evidence. These cases show that courts regularly focus on two societal interests allegedly furthered by finality: preventing frivolous claims from flooding the appellate system and incentivizing defense counsel to get it right the first time.26 Regarding the former, courts often conclude that admitting this evidence was non-prejudicial in light of other evidence against the defendant.27 In other words, courts classify either the legally sound, or unsound, admission of firearms-identification evidence as 21. Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 72 (2009); see also id. at 97 (Stevens, J., dissenting) (pointing out that the State would not test the evidence despite the defendant’s offer to pay).

22. Levenson, supra note 19, at 551 (footnote omitted).

23. Kim, supra note 10, at 564, 620–21.

24. Id. 25. Id. at 578.

26. See, e.g., United States v. Perkins, 342 F. App’x 403 (10th Cir. 2009).

27. See, e.g., id. at 410.

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immaterial. However, this rationale overlooks the impact this type of scientific evidence has on jurors and the special trust jurors place in this evidence and in expert witnesses.28 In fact, studies show that jurors rate firearms examiners among the most honest, competent, and influential experts.29 Regarding the latter, incentivizing defense counsel, the courts emphasize the importance of the adversarial system and defense counsel’s ability to cross-examine.30 But this view overlooks the limitations of the adversarial process and the inherent difficulties with making a legal challenge to forensic evidence. As consumers of science, lawyers (including judges) “have very little understanding of the product they are buying.”31 These are both valid finality interests. As Kim explains: [F]ew would argue that a defendant convicted at trial by a mountain of properly admitted evidence should be granted a new trial based on a claim that a minor piece of evidence was improperly admitted. . . . In such a case, reversing the conviction would simply waste resources on a new trial, the result of which would likely be another conviction. Even worse, if the prosecutor chose not to retry the defendant, a reversal would allow a guilty defendant to go free on a technicality. Similarly, a defendant whose attorney withheld certain evidence at trial for sound strategic reasons generally cannot obtain a new trial in order to present this “sandbagged” evidence. Allowing a new trial under such circumstances would give the defendant an unfair second opportunity to avoid conviction.32

28. Brandon Garrett & Peter Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 25, 32 (2009).

29. Michael J. Saks & Roselle L. Wissler, Legal and Psychological Bases of Expert Testimony: Surveys of the Law and of Jurors, 2 BEHAV. SCI. & L. 435, 442– 43 (1984).

30. See Erin Murphy, The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System, 87 S. CAL. L. REV. 633, 672 (2014).

31. DAVID L. FAIGMAN, LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW 53 (1999).

32. Kim, supra note 10, at 566–67.

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These rationales, however, overlook important issues that arise when law consumes science in criminal courtrooms. “Since neither law nor science is uncomplicated, few should expect their marriage to be.”33 The courts’ emphasis on defense counsel’s performance first overlooks the difficulties lawyers have in obtaining adequate resources to make and understand challenges to forensic evidence.

Also overlooked are the limitations of the adversarial process itself; the adversarial process neither always showcases a full picture of relevant scientific evidence nor dilutes unreliable evidence in the eyes of jurors. Second, the courts’ dismissal of the importance of forensic evidence, especially when expert opinion links the defendant to a suspect weapon (particularly in the terms of a “match”), overlooks the persuasive impact scientific evidence has on jurors.34 III. FIREARMS IDENTIFICATION, CRITICISM, AND THE INITIAL CONSERVATIVE SHIFT IN JUDICIAL DECISION-MAKING Despite some early criticism, firearms-identification evidence has been admitted into American courtrooms since the early 1900s.35 Since then, the discipline has satisfied both of the leading standards for the admissibility of expert evidence: the “general acceptance” standard set out in Frye v. United States36 in 1923 and the “flexible, factor-based approach”37 detailed by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc.38 in 1993.39 Currently, Daubert generally governs the admissibility of scientific expert evidence.40 Daubert charges courts to examine the principles and methodologies behind proffered scientific evidence and not simply whether the expert’s conclusions drawn from the evidence are generally accepted in the scientific community.41 Daubert lists five key factors for judges to consider when analyzing 33. FAIGMAN, supra note 31, at 66.

34. Garrett & Neufeld, supra note 28.

35. Lanigan, supra note 1, at 57–58.

36. 293 F. 1013, 1014 (D.C. Cir. 1923).

37. Sarah Lucy Cooper, The Collision of Law and Science: American Court Responses to Developments in Forensic Science, 33 PACE L. REV. 234, 242 (2013).

38. 509 U.S. 579 (1993).

39. See Cooper, supra note 37, at 242 n.47.

40. See Alice B. Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453 (2001) (listing states that follow Daubert, Frye, or another test).

41. Daubert, 509 U.S. at 595.

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the reliability of expert testimony: (1) whether a method can or has been tested, (2) the known or potential rate of error, (3) whether the method has been subjected to peer review, (4) whether there are standards controlling the method’s operation, and (5) the general acceptance of the method within the relevant community.42 Firearms identification is premised on the notion that a weapon leaves unique tool-marks on the ammunition it fires and that these marks are reproduced each time the weapon is discharged.43 When the hard metal of an internal part of a gun connects with the softer metal of the ammunition, it makes a tool-mark on the ammunition.44 Tool-marks can be divided into class, subclass, and individual characteristics.45 Class characteristics are “distinctively designed features” and will be present on every tool in that class.46 And individual characteristics are unique to a particular tool and consist of purportedly random, microscopic imperfections and irregularities present on the tool’s surface.47 Subclass characteristics straddle the line between class and individual characteristics.48 Subclass characteristics arise when manufacturing processes create batches of tools that are similar to each other but distinct from other tools of the same class.49 Thus, many firearms examiners believe they can examine these marks and conclude that a particular gun fired a particular bullet to the exclusion of all others.50

42. Id. at 593–94.

43. See Shelton, supra note 2, at 335–36.

44. See Schwartz, supra note 3, at 11–12 (discussing two distinct types of toolmarks that may be created when firing a gun: striations and impressions). Striations are similar to small scratches and are most often produced on the bullet as it passes through the gun barrel. Id. Impressions usually resemble dimples or craters and are typically produced on the cartridge as it comes into contact with the various internal parts of the firing chamber such as the firing pin, breach face, extractor, and ejector. Id. 45. Id. at 12.

46. Id. 47. Id. 48. See id. (stating that subclass characteristics differ from individual characteristics because they are shared by more than one tool, but they cannot fall under class characteristics because every tool in that class does not share them).

49. Id. 50. Schwartz, supra note 3, at 14.

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In the late 1990s, the Association of Firearms and Tool Mark Examiners (AFTE) drafted a protocol (AFTE Protocol) for experts to follow during their examinations. 51 Presently, the AFTE Protocol is the industry standard by which examiners conduct their examinations.

Under the AFTE Protocol, an examiner may make one of the following four conclusions: (1) identification, (2) inconclusive, (3) elimination, or (4) unsuitable for comparison. To make an “identification” (i.e., a “match”), there must be “sufficient agreement” between the tool-marks present on ammunition found at a crime scene and a test cartridge fired from a suspect weapon.52 Despite this protocol and the routine admission of firearmsidentification evidence, the discipline came under significant criticism in 2008 and 2009. In 2008, the National Research Council of the National Academies published its Ballistic Imaging Report, which focused on the feasibility of a national ballistics database.53 The Ballistic Imaging Report was not intended to provide an overall assessment of firearms identification as a discipline. But in assessing the feasibility of a national ballistics database, the report also considered the uniqueness of firearms-related tool-marks and found that a definitive correlation had not been fully demonstrated.54 51. Cooper, supra note 37, at 250 (citing Ass’n of Firearms & Tool Mark Exam’rs, Theory of Identification as It Relates to Toolmarks, 30(1) AFTE J. 86 (1998)).

52. Id. (footnotes omitted) (citing Ass’n of Firearms & Tool Mark Exam’rs, supra note 51, at 86–87). “[T]he protocol anticipates that the combination of marks examined will cumulatively reveal which conclusion the examiner may reach regarding the weapon itself.” Id. at 250 n.99. “‘Sufficient agreement exists’ when the ‘agreement is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility.’” Id. at 251 n.100 (quoting AFTE Criteria for Identification Comm., Theory of Identification, Range of Striae Comparison Reports and Modified Glossary Definitions—an AFTE Criteria for Identification Committee Report, 24(2) AFTE J. 336, 337 (1992)).

53. COMM. TO ASSESS THE FEASIBILITY, ACCURACY, AND TECHNICAL CAPABILITY OF A NAT’L BALLISTICS DATABASE, NAT’L RESEARCH COUNCIL OF THE NAT’L ACADEMIES, BALLISTIC IMAGING (Daniel L. Cork et al. eds., 2008) [hereinafter BALLISTIC IMAGING REPORT].

54. Id. at 3; see also United States v. Taylor, 663 F. Supp. 2d 1170, 1176 (D.N.M. 2009) (discussing the focus and scope of the Ballistic Imaging Report).

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Moreover, in 2009, the National Academy of Sciences published its landmark report, Strengthening Forensic Science in the United States: A Path Forward,55 which was commissioned by Congress in recognition that significant improvements were needed across the forensic science disciplines. The Academy was asked to report on the past, present, and future use of forensic science in America,56 and after two years of collaborating with legal and scientific scholars and practitioners57 and sixteen days of testimony involving over eighty witnesses,58 the Academy issued a report containing its findings.

The Forensic Science Report concluded that the forensic-science system had serious problems,59 faced many challenges,60 and was responsible for multiple wrongful convictions.61 First, it concluded that “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” except for DNA analysis.62 Second, it concluded that the existing legal framework governing the admissibility of forensic evidence in the United States was inadequate for resolving the identified problems.63 Regarding firearms identification, the Forensic Science Report found that class characteristics could be useful “in narrowing the pool of tools that may have left a distinctive mark”64 and that individual characteristics “might, in some cases, be distinctive enough to suggest one particular source.”65 But overall, the report concluded that the “scientific knowledge base for tool mark and firearms

55. FORENSIC SCIENCE REPORT, supra note 4.

56. Id. at xix.

57. Id. at xix–xx.

58. Id. at 2.

59. See id. at xx.

60. See id. at 5–8 (arguing that challenges include the lack of mandatory standardization, certification, and accreditation; the interpretation of forensic evidence; the need for research; and the need for established limits and measures of performance).

61. Id. at 4 (stating that advances in DNA technology have “revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people”).

62. Id. at 7.

63. Id. at 85.

64. Id. at 154.

65. Id.

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analysis is fairly limited.”66 In order to make the process of individualization more precise and consistent, the report concluded that more studies were necessary.67 It further concluded that the AFTE Protocol was not defined sufficiently for examiners to follow, particularly for when an examiner can be said to have “matched” two samples.68 The report berated the protocol: “This AFTE document, which is the best guidance available for the field of tool mark identification, does not even consider, let alone address, questions regarding variability, reliability, repeatability, or the number of correlations needed to achieve a given degree of confidence.”69 The Forensic Science Report followed a conservative shift by some courts regarding firearms-identification evidence. Prior to the report, a number of courts curtailed testimony given by firearms experts because individualization claims were unsupported or misleading. In United States v. Green,70 the trial court admitted expert testimony but refused to allow the expert to conclude that the shell casings came from a specific pistol to the exclusion of every other firearm: “That conclusion—that there is a definitive match— stretches well beyond [the expert’s] data and methodology.”71 The expert was permitted to describe his observations and comparisons regarding the shell casings.72 The same court considered a similar challenge weeks later in United States v. Monteiro.73 In Monteiro, the defendant sought to exclude expert testimony that suspect cartridge cases matched firearms linked to him.74 The court rejected the defendant’s challenge, finding that the underlying scientific principle of individualization in firearm identification was valid.75 But on the basis that an identification is largely subjective and there is no existing reliable statistical or scientific methodology that allows an expert to testify to a match to an absolute certainty, the expert was 66. Id. at 155.

67. Id. at 154. Studies have considered the degree of similarity that can be found between marks made by different tools and the variability in marks made by an individual tool. Id. 68. Id. at 155.

69. Id. 70. 405 F. Supp. 2d 104, 109 (D. Mass. 2005).

71. Id. 72. Id. 73. 407 F. Supp. 2d 351, 355, 358 (D. Mass. 2006).

74. Id. at 365.

75. Id. at 366.

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only allowed to testify to a “reasonable degree of ballistic certainty.”76 Similarly, in United States v. Diaz,77 the court found that individualization claims in the firearms-identification field were not supported. Thus, the court only allowed the examiners to testify “that a match has been made to a ‘reasonable degree of certainty in the ballistics field.’”78 And in United States v. Glynn,79 the trend continued. In Glynn, the court concluded that allowing the examiner to testify that he had matched ammunition to a particular gun “to a reasonable degree of ballistic certainty” would “seriously mislead the jury as to the nature of the expertise involved.”80 To resolve this problem, the court (1) limited the expert to testifying that a firearms match was “more likely than not;” (2) prevented the expert from testifying that he reached his conclusions to any degree of certainty; and (3) prevented the expert from testifying that ballistics was a science.81 After the Forensic Science Report was published, some courts continued the conservative trend. For example, in United States v.

Taylor,82 the defendant moved to exclude firearms-identification evidence showing that his rifle could be matched to suspect ammunition in a racketeering prosecution.83 The Taylor court considered the Forensic Science Report in the context of Daubert’s controlling-standards factors. The court found, “Arguably the biggest obstacle facing any firearms examiner is that there is no such thing as a ‘perfect match.’”84 The court partially attributed this to the circular nature of the AFTE Theory of Identification, which “does not provide any uniform numerical standard examiners can use to determine whether or not there is a match.”85 Thus, much is left to the subjective eye of the examiner.86 The court acknowledged that the Forensic Science Report had recognized this problem but did not indicate whether such criticism favored admission of expert 76.

77.

78.

79.

80.

81.

82.

83.

84.

85.

86.

Id. at 372.

No. 05-00167, 2007 WL 485967, at *1 (N.D. Cal. Feb. 12, 2007).

Id. at *1, *14.

578 F. Supp. 2d 567 (S.D.N.Y. 2008).

Id. at 574–75.

Id. at 568–69.

663 F. Supp. 2d 1170 (D.N.M. 2009).

Id. at 1171–72.

Id. at 1177.

Id. Id.

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testimony.87 Yet, the court noted that the AFTE Theory met the generally accepted standard because it was widely accepted, although not universally followed, by trained firearms examiners.88 In the end, the Taylor court admitted the firearms-identification evidence but limited the examiner to testifying that the ammunition came from the defendant’s rifle within a “reasonable degree of certainty in the firearms examination field.”89 A review of challenges to firearms-identification evidence decided post-2005 shows that a number of American courts have changed their approach to the admissibility of firearms-identification evidence, “moving firearms examiners away from making claims of individualization by restricting examiners to specific terminology and phrases, which allegedly reflect less absolute conclusions.”90 Overall, courts have seemingly taken this approach because of concerns about the subjectivity of firearms identification and its lack of empirical underpinnings for claims of individualization.91 The extent to which both this shift has continued post-2009 and has been influenced by finality interests is considered in Part IV. IV. JUDICIAL RESPONSES TO CHALLENGES TO FIREARMSIDENTIFICATION EVIDENCE, THE INFLUENCE OF FINALITY, AND ITS IMPLICATIONS As mentioned above, when rejecting challenges to firearmsidentification evidence, courts are seemingly drawing upon two particular finality interests, namely the prevention of frivolous claims from flooding the system and incentivizing defense counsel.

A. Preventing a Flood of Frivolous Claims Preventing courts from being flooded with trivial claims is a very significant finality interest that links closely with conserving resources and maintaining efficiency. When rejecting challenges to 87. Id. at 1177–78 (explaining the issues surrounding the AFTE Protocol, the court noted an additional problem with firearms identification—confirmatory bias).

The court explained that it is typical practice for an examiner to be handed only one suspect weapon and the recovered ammunition, which creates “a potentially significant ‘observer effect’ whereby the examiner knows that he is testing a suspect weapon and may be predisposed to find a match.” Id. 88. Id. at 1178.

89. Id. at 1180.

90. Cooper, supra note 37, at 287.

91. Id.

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firearms-identification evidence, courts often conclude that admitting the firearms-identification evidence was non-prejudicial or harmless in light of other evidence against the defendant. In other words, courts are terming the legally sound, or unsound, admission of firearms-identification evidence—even when that evidence is presented with a greater degree of certainty than can be scientifically supported—as immaterial. This approach, however, overlooks a bundle of interrelated issues: jurors’ inflated expectations of science, their comfort in alleged expert certainty, and their difficulty in engaging accurately with scientific evidence.

Numerous cases demonstrate courts employing this rationale. In United States v. Perkins,92 the defendant challenged the admission of expert testimony showing that ammunition found at the crime scene was fired by two different weapons, which had not been recovered.93 After refusing to engage with the issue fully, as the defendant did not object to the admission of the evidence at trial, the United States Court of Appeals for the Tenth Circuit commented, “Moreover, this testimony was not of particular importance in this trial. . . . The expert testimony at issue here merely corroborated the evidence of the victims, the accomplice and the videotape. Without this tool mark evidence, the prosecution’s case would still have been overwhelming.”94 Other cases are more troubling as they presume (1) that the adversarial system is effective at weeding out frailties in forensic evidence even when experts have made individualization claims (or claims close to individualization) and (2) that jurors engage with scientific testimony accurately.

Jones v United States95 exemplifies the former issue. In that case, the defendant argued that the trial court should have at least precluded government experts from stating their conclusions with “absolute certainty excluding all other possible firearms.”96 The court acknowledged that there was a “growing consensus that firearms examiners should testify only to a reasonable degree of certainty”97 92. 342 Fed. App’x 403 (10th Cir. 2009). Note that this is an arguably more benign example because, in this case, the expert testimony did not actually “match” the suspect ammunition to the defendant.

93. Id. at 409–10.

94. Id. at 410.

95. 27 A.3d 1130 (D.C. 2011).

96. Id. at 1138.

97. Id. at 1139.

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and assumed, without deciding, that experts should not be “permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.”98 But the court noted that any such error in the instant case was harmless because counsel had thoroughly crossexamined the expert and was able to highlight weaknesses in the expert’s levels of certainty, the expert’s subjective conclusions, and the lack of demonstrative evidence.99 In the court’s view, “the jury’s assessment of this evidence surely did not turn on the difference between a ‘100% certain’ conclusion and a ‘reasonably certain’ opinion.”100 But such conclusions presume—perhaps too comfortably—that cross-examination is an effective tool for presenting frailties in forensic evidence.

Although studies show that jurors can be sensitive to the relative strength of cross-examination of an expert,101 this does not necessarily affect their perceptions of the quality of the evidence or their verdict. These studies should “give pause to anyone who believes that the traditional tools of the adversarial process will always undo the adverse effects of weak expert testimony.”102 The cases of United States v. Otero,103 Melcher v. Holland,104 and United States v. Mouzone105 are examples of the latter issue.

In Otero, the court accepted the significance of firearmsidentification testimony to a jury but still failed to engage in the problems that jurors have in digesting this evidence. The defendants moved to exclude firearms-identification testimony, claiming that it was not reliable because it was based on the examiner’s subjective opinion, instead of being based on objective standards.106 The court accepted that individualization claims “may well be somewhat overblown,”107 but found testimony indicating a match to a 98. Id. 99. Id. 100. Id. at 1139–40.

101. See Margaret Kovera et al., Expert Testimony in Child Sexual Abuse Cases: Effects of Expert Evidence Type and Cross-Examination, 18 LAW & HUM. BEHAV. 653 (1994).

102. Dawn McQuiston-Surrett & Michael J. Saks, Communicating Opinion Evidence in the Forensic Identification Sciences: Accuracy and Impact, 59 HASTINGS L.J. 1159, 1188 (2008).

103. 849 F. Supp. 2d 425 (D.N.J. 2012).

104. No. 12-0544, 2014 WL 31359 (N.D. Cal. Jan. 3, 2014).

105. 687 F.3d 207 (4th Cir. 2012).

106. Otero, 849 F. Supp. 2d at 429.

107. Id. at 438.

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“reasonable degree of professional certainty” was permissible.108 One reason for this was that “the relevance of such testimony to the charges against Defendants is manifest. Clearly, the evidence will assist the trier of fact to determine a fact in issue,” i.e., the defendants’ alleged involvement in an armed robbery.109 In Melcher, the defendant challenged the admission of expert testimony that involved the phrases “practical certainty” and the “impossibility of another source.”110 Specifically, the trial court ordered that the expert should not testify that he was “one hundred percent” sure.111 But the expert did, in fact, state that the “chances of another firearm creating [the] exact same pattern are so remote to be considered practically impossible.”112 In response, the court recognized that other federal courts differed on the proper form of this testimony in light of varying levels of concern about the reliability of firearms-identification methodology113 and acknowledged that the expert had come “close to the line” of expressing 100% certainty.114 But the court said that this had been tempered by cross-examination and jury instructions about evaluating expert testimony.115 Moreover, the court found that even if the expert’s testimony should have been “reigned in”116 to conform to Diaz or Glynn, no prejudice “stemmed from the form [the expert] did use.”117 The court found the difference between “practical certainty” and “considered practically impossible” versus “reasonable degree of certainty” or “more likely than not” would not tip the outcome of this case.118 But the court did not explore why it would not tip the outcome.

108. Id. at 429.

109. Id. at 438.

110. Melcher v. Holland, No. 12-0544, 2014 WL 31359, at *12 (N.D. Cal. Jan. 3, 2014).

111. Id at *5.

112. Id. 113. Id. at *12.

114. Id. at *13.

115. Id. at *12 (“The court admonished the jury that this was [the expert’s] opinion, and made it clear that he did not test fire every Glock in the world, state or city.”).

116. Id. at *13.

117. Id. 118. Id.

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Similarly, in United States v. Mouzone,119 the government’s expert testified beyond the scope of what a district-court judge had ordered was permissible.120 The expert was ordered not to testify that it was a “practical impossibility” for different firearms to have fired the suspect casings or that he was “certain” about his conclusions.121 At trial, however, the expert repeatedly testified that the casings found at two different murder scenes were “fired from the same firearm” and “there comes a point where it’s a practical impossibility. . . . That’s when I’m convinced that these two [cartridge cases] were marked by the same surface.”122 Defense counsel’s objections were overruled.123 The defendants appealed, arguing that this testimony was prejudicial because it painted them as killers.124 The Fourth Circuit disagreed, stating that the testimony only supported the notion that the same weapon fired the casings recovered at each murder scene. In other words, it potentially connected the firearm to both murders, thereby linking the murders to each other, but it did not prove that either defendant was responsible for the casings at either murder scene.125 As such, the court found that “to the extent that the jury concluded that the Appellants were killers and allowed that conclusion to influence their final verdict, [the expert’s] testimony was not the cause.”126 Courts have even rejected challenges—on the basis that admitting the evidence was harmless—in cases where the type of evidence used against the defendant has been officially discontinued. In 2011, the defendant in the case In re Personal Restraint of Trapp127 presented newly discovered evidence that included a letter from the FBI indicating that the Comparative Bullet Lead Analysis128 (CBLA) 119. 687 F.3d 207 (4th Cir. 2012).

120. Id. at 216.

121. Id. 122. Id. 123. Id. 124. Id. 125. Id. at 216–17.

126. Id. at 217.

127. No. 65393-8-I, 2011 Wash. App. LEXIS 2700 (Nov. 28, 2011) (per curiam).

128. See John Solomon, FBI’s Forensic Test Full of Holes, WASH. POST, Nov. 18, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/11/17/AR 2007111701681.html (“The [CBLA] technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.”).

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evidence offered against him at trial was “potentially ‘misleading’ and ‘not supported by science.’”129 At trial, the State’s expert successfully linked crime-scene bullets to a box of bullets in the defendant’s vehicle using CBLA.130 But the use of CBLA evidence was discontinued after a report questioning its validity was published in 2004.131 The court rejected the defendant’s application for relief because it found that he had not shown that the result would be different if the CBLA evidence was recanted.132 All of the aforementioned cases show courts rejecting challenges to firearms-identification evidence on the basis that the evidence was harmless or not verdict-changing. But the courts simultaneously neglect to make a meaningful assessment of how scientific evidence impacts jurors and how jurors digest it. This is an important consideration for multiple reasons.

First, and most significantly, the vast majority of jurors are not scientists.133 Thus, many jurors have difficulty engaging with scientific evidence accurately and, in particular, determining the appropriate weight to afford to specific testimony. This is an especially relevant consideration in firearms-identification cases given the recent controversy surrounding how limits on expert testimony should be phrased.

For example, McQuiston-Surrett and Saks conducted a study examining the impact that variations in the presentation of a forensic expert’s findings have on jurors. The study varied the language and concepts that the expert used to communicate the results of 129. In re Trapp, 2011 Wash. App. LEXIS 2700, ¶ 1 (discussing the letter submitted by the FBI).

130. Id. ¶ 12.

131. Kulbicki v. State, 53 A.3d 361, 377 (Md. Ct. Spec. App. 2012) (citing United States v. Berry, 624 F.3d 1031, 1037 (9th Cir. 2010)) (“The FBI commissioned the National Research Council . . . to evaluate its use of CBLA, and, following the Council’s 2004 report, discontinued its use of CBLA at trials.”), rev’d, 99 A.3d 730 (Md. 2014). See generally COMM. ON SCIENTIFIC ASSESSMENT OF BULLET LEAD ELEMENTAL COMPOSITION COMPARISON, NAT’L RESEARCH COUNCIL OF THE NAT’L ACADEMIES, FORENSIC ANALYSIS: WEIGHING BULLET LEAD EVIDENCE 112–13 (2004) (finding that experts’ conclusions that different bullets came from the same source, based on CBLA, were not supported by appropriate scientific or statistical testing). For further discussion of Kulbicki, see infra notes 156–161 and accompanying text.

132. In re Trapp, 2011 Wash. App. LEXIS 2700, ¶ 31 (“But because significant evidence connected Trapp to Kent’s murder, we disagree. The absence of CBLA testimony would not have changed the result of the trial.”).

133. FAIGMAN, supra note 31, at 53.

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microscopic hair comparisons. The study found that jurors “inferred a higher probability that the defendant was the source of the crime scene hair when the expert testimony was presented in the form of ‘match’. . . , ‘similar-in-all-microscopic-characteristics’ . . . , or as an objective single-probability . . . than when it was presented in a subjective-probability . . . or objective multiple-frequency format . . . .”134 It also found that the evidence had a significant impact on the jurors’ determination of guilt.135 The study further showed that jurors “tended to yield to comforting certainties of expression about the evidence being testified to;”136 were “comfortable converting subjective probability evidence into findings of liability when the expert assert[ed] a personal interpretation of a conclusion;”137 and had difficulties “understanding statistical, and especially probability, data, and underutilize[d] such information.”138 Interestingly, the study found that judges were less influenced by the expert’s testimony than jurors were and “arriv[ed] at [lower] probability estimates that the defendant was the source of the crime scene evidence.”139 Such findings raise the possibility that judges might substitute their own assessment of the evidence for that of jurors.

Judges may be more comfortable labeling the admission of such evidence as harmless or finding that a jury could not have come to any particular conclusion in light of the record. The Jones, Mouzoune, and Trapp cases might well be examples of this.

In addition, other scholars have noted that phrases such as “a reasonable degree of ballistic certainty” could be confusing to jurors.

For instance, Bonnie Lanigan gives the example that “the phrase ‘ballistic certainty’—especially when ‘ballistics’ is not an accurate term as it encompasses all projectiles—may not sound that different to a juror from the phrase ‘scientific certainty.’”140 These findings are important to consider given the results in cases such as Otero, Trapp, Melcher, and Mouzone, where courts effectively dismissed the impact of varying forms of expert testimony.

134.

135.

136.

137.

138.

139.

140.

McQuiston-Surrett & Saks, supra note 102, at 1165.

See id. at 1165–66.

Id. at 1188.

Id. at 1189.

Id. Id. at 1188.

Lanigan, supra note 1, at 71.

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Second, there is ample evidence that jurors consider forensic evidence “especially critical to their ultimate decision about guilt.”141 Jurors have a thirst for scientific evidence142 and expect to see it, particularly in cases where the majority of the evidence is circumstantial.143 This issue alone should foster pause in cases like Trapp, where the remaining evidence against the defendant was mostly circumstantial. In that case, the court arguably overlooked the significant impact the “scientific” CBLA evidence could have had on the jury, compared to various circumstantial evidence, and the jurors’ ability to attach relative importance to it.

Third, scientific evidence has a high impact on jurors. “[R]esearch suggests that statements made by experts are given considerable deference by jurors and their impact is likely not to be undone by cross-examination or rebuttal witnesses.”144 Jurors may place even more trust in an expert who is subject to a vigorous cross examination as opposed to being more skeptical about the reliability of the expert’s evidence. As one study concluded: One might have expected an explication of the examination process, emphasizing the guesswork involved, would have a sobering effect on fact finders, but it appears instead to lead fact finders to be more impressed by the examination. Similarly, since most jurors begin with an exaggerated view of the nature and capabilities of forensic identification, one might expect that information explicitly informing fact finders about the limitations of the expertise would temper the jurors’ inferences. Such information had little effect on jurors’ judgments.145 Moreover, jurors are not presented with the full picture. Instead, jurors “hear highly practiced alternative stories that only roughly 141. Pete Frick, Forensic Science in Court: Challenges in the Twenty-First Century, 27 SYRACUSE J. SCI. & TECH. L. 145, 156 (2012); DONALD E. SHELTON, FORENSIC SCIENCE IN COURT: CHALLENGES IN THE TWENTY-FIRST CENTURY 102 (2011).

142. Donald E. Shelton et al., A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist?, 9 VAND. J. ENT. & TECH. L. 331, 333 (2006).

143. Frick, supra note 141, at 157.

144. Jonathan J. Koehler & Michael J. Saks, Individualization Claims in Forensic Science: Still Unwarranted, 75 BROOK. L. REV.1187, 1206 (2010).

145. McQuiston-Surrett & Saks, supra note 102, at 1188.

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approximate what might be termed reality.”146 In terms of expert testimony, because of the adversarial model, “information that reaches the legal system [and hence the jury] does not represent the scientific field more generally.”147 Very often, jurors are presented with experts at the “margins of their disciplines [who] are chosen . . . because they are willing to be more extreme in the proponent’s favor and thus come across as more certain of their conclusions.”148 This approach suggests the scientific field is more polarized than it actually is.149 This has implications for cases like Jones that presume the effectiveness of the adversarial system to weed out frailties and expose maverick experts.

In light of this, although preventing frivolous claims from flooding the system is a legitimate finality interest, challenges to firearms-identification evidence—especially those challenging the use of expert testimony that suggests “individualized” conclusions— may require a fresh assessment. This evidence likely has a high impact on already science-thirsty jurors, who find comfort in alleged expert certainty and find it difficult to engage scientific evidence accurately. Courts should recognize this problem when considering challenges to firearms-identification evidence. Before restricting post-conviction review, or other motions, on the basis that such evidence is harmless or lacking in verdict-changing capacity, courts should more meaningfully consider whether that truly is the case.

B. Incentivizing Defense Counsel Encouraging more efficient behavior by defense counsel is considered an “instrumental benefit” of finality.150 When admitting firearms-identification evidence, many courts place emphasis on the ability of defense counsel to weed out frailties in forensic evidence via cross-examination. The criminal justice system “heavily depends upon the skill of counsel and in-court confrontation rather than outof-court oversight and structural reform.”151 By underscoring the role of defense counsel (and the adversarial system) when rejecting these challenges, the courts are reinforcing the idea that counsel should be preventing errors at trial level, along with the idea that allowing more 146.

147.

148.

149.

150.

151.

FAIGMAN, supra note 31, at 65.

Id. Id. at 54.

Id. Kim, supra note 10, at 563.

Murphy, supra note 30, at 672.

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lenient post-conviction review would effectively encourage counsel to engage in “sandbagging.”152 However, this overlooks one significant issue: counsel cannot always challenge this evidence effectively.

For example, sometimes science has not yet provided counsel with the tools to challenge the evidence. In the 2012 case Kulbicki v.

State,153 the defendant, who was convicted in 1995, alleged that he was denied a fair trial because the CBLA evidence used against him was unreliable and the State had used “perjured, false, and misleading expert ballistics testimony.”154 Using CBLA, the State’s expert testified that bullet fragments taken from the victim and from Kulbicki’s truck were “analytically-indistinguishable.”155 The use of CBLA evidence was discontinued after the National Research Council concluded, in 2004, that it was unreliable to conclude that a CBLA “match” supported other factual assertions at trial, such as that “matching bullets came from the same box, the same manufacturer, were related in time or geography, or generally linked the defendant to the crime in some unspecified manner.”156 Still, the court affirmed the conviction, concluding, “Kulbicki’s criticisms of CBLA analysis concern the proper weight of the evidence, not its admissibility. It can hardly be said, therefore, that the adversarial system was not competent to uncover, recognize, and take due account of its shortcomings.”157 The problem, however, is that both of Kulbicki’s convictions occurred a decade before CBLA evidence was discontinued.

Unsurprisingly, therefore, counsel neither challenged the expert’s credentials nor the reliability of his “science” on cross-examination.

The simple fact is that defense counsel did not have the tools or knowledge to challenge the evidence.158 Although defense counsel’s 152. See Kim, supra note 10, at 586.

153. Kulbicki v. State, 53 A.3d 361 (Md. Ct. Spec. App. 2012), rev’d, 99 A.3d 730 (Md. 2014).

154. Id. at 364.

155. Id. at 368.

156. Id. at 377; see supra notes 130–35 and accompanying text.

157. Id. at 379 (quoting United States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010)) (internal quotation marks omitted).

158. In August of 2014, Maryland’s highest court reversed Kulbicki’s conviction, holding that defense counsel performed deficiently by failing to challenge the expert’s CBLA testimony. Kulbicki v. State, 99 A.3d 730, 743–44 (Md. 2014), rev’g 53 A.3d 361 (Md. Ct. Spec. App. 2012). The reversal was not based on the fact that the use of CBLA evidence was officially discontinued after

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failure to object to the CBLA evidence or undermine its reliability would, post-2004, be plainly erroneous, counsel’s decisions were “ostensibly reasonable at the time they were made.”159 Note that a similar issue can be seen in the case of In re Trapp discussed above.

Numerous other cases show defense counsel struggling to adequately challenge forensic-identification testimony. In United States v. Perkins,160 the defendant argued that the government should have been precluded from presenting firearms-identification evidence. The expert was not certified by the AFTE and had never “had his competency objectively assessed. He did not testify about his error rates, the error rates of his laboratory, or the error rates of his field generally.”161 Appellate counsel, relying on Green,162 challenged the admissibility of the evidence on the basis that it did not satisfy Daubert. But because defense counsel made no objections at trial, the court found there was no occasion for a Daubert analysis.163 The court stated that Green was not very helpful to Perkins because the court there emphasized that the “issue is not whether the field in general uses a reliable methodology, but the reliability of the expert’s methodology in the case at bar.”

Because no challenge was made at trial to the admissibility of the testimony now challenged here, the record provides no basis for this court to review the reliability of this expert’s methodology in this case. We therefore neither accept nor reject the Kulbicki’s conviction—instead, the reversal was based on defense counsel’s failure to discover that the particular expert used by the State had authored a report, published in 1991, that called the accuracy of CBLA into question. Id. at 739–41 (citing Ernest R. Peele et al., Comparison of Bullets Using the Elemental Composition of the Lead Component, in LAB. DIV., FED. BUREAU OF INVESTIGATION, PROCEEDINGS OF THE INTERNATIONAL SYMPOSIUM ON THE FORENSIC ASPECTS OF TRACE EVIDENCE: JUNE 24–28, 1991, at 57, 61 (1991)). Even though CBLA evidence was still widely accepted at the time of Kulbicki’s conviction, defense counsel should have discovered that this particular expert had published a report that called the very science his testimony relied upon into question. Id. at 74–42. In some ways, the report published by this expert in 1991 presaged the NRC’s 2004 report. Id. at 739.

159. Kim, supra note 10, at 585.

160. 342 F. App’x 403 (10th Cir. 2009).

161. See id. at 410.

162. See supra notes 73–75 and accompanying text.

163. Perkins, 342 F. App’x at 410.

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analysis of Green, as we simply conclude that the issues considered in that case are not before us.164 Defense counsel also displayed deficiencies in United States v.

Sebbern.165 Based on the criticisms detailed in the Forensic Science Report, particularly those aimed at the subjectivity of the AFTE Theory, the defendants argued that the State should be precluded from presenting firearms-identification evidence. The court denied the motion and criticized the approach taken by counsel. The court noted the defendants’ preclusion argument was “unsupported by any legal authority” and merely cited Daubert, Green, and Glynn.166 Daubert had not been applied and the cases had not been discussed.

The court then engaged with a plethora of relevant cases that the defense seemingly overlooked and concluded no case, including Glynn or Green, supported precluding the testimony.167 The court acknowledged that these cases may support a request to limit the degree of confidence “which the expert can express with respect to his findings”168 but then continued to underscore that this somewhat obvious route had been neglected: However, while the headnote of Mr. Sebbern’s motion argues that, “The Government’s ‘Expert’ on Firearms Identification Should be Precluded or Limited,” the rest of the motion neither makes further mention of, nor proposes, any limitations. Since the motion does not argue for a specific limitation and since the government’s response does not address this issue, this Court cannot address it at this juncture.169 Similar deficiencies are showcased in Thomas v. State.170 The defendant argued that the trial court erred in admitting evidence that suspect bullets had been fired by a gun recovered from his home on the basis that his counsel was not able to cross-examine the first 164. Id. (citation omitted) (quoting United States v. Green, 405 F. Supp. 2d 104, 119 (D. Mass. 2005)).

165. United States v. Sebbern, No. 10 Cr. 87(SLT), 2012 WL 5989813 (E.D.N.Y. Nov. 30, 2012) (order denying motion to preclude expert testimony).

166. Id. at *6.

167. See id. at *6–7.

168. Id. at *7.

169. Id. 170. Thomas v. State, No. CR-11-1243, 2013 WL 3589291 (Ala. Crim. App. July 12, 2013).

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expert analyst who made the comparison. The court rejected the appeal on the basis that defense counsel had not explored the issue at a pre-trial hearing to determine the admissibility of the firearms evidence.171 In Jones v. United States,172 discussed above, defense counsel failed to present an opposing expert. The defendant argued that the trial court should have at least precluded the government’s experts from stating their conclusions with “absolute certainty excluding all other possible firearms.”173 The court affirmed the defendant’s conviction, reasoning that defense counsel had cross-examined the expert thoroughly and therefore had given the jury an opportunity to assess the evidence.174 In fact, the court noted counsel had even used the expert’s expressions of certainty to the defendant’s advantage, suggesting that the expert was simply telling the jury to “trust me.”175 But significantly, the court pointed out that the defense failed to present its own expert evidence: Defense counsel did not present an expert to explain the difference or to opine that the government examiners’ confidence in their results was unjustifiably exaggerated. Nor did the defense put on an expert to point out any weaknesses in the methodology employed by the government experts. In fact, even though the trial court made it possible for the defense to conduct an independent test, it chose not to have an expert testify at all.176 All of the aforementioned cases show counsel having difficulties in challenging firearms-identification evidence. Counsel may not have couched their arguments effectively, as in Perkins and Sebbern, or failed to do something more specific, like hire an expert, make an objection, or cross-examine, as in Thomas, Jones, and Sebbern.

These cases show that the courts are acknowledging counsels’ deficiencies but not unpicking why counsel may have made these inadvertent mistakes or, indeed, strategic decisions. The reasons why, of course, may be many and varied, but one important rationale 171.

172.

173.

174.

175.

176.

See id. at *2–3.

27 A.3d 1130 (D.C. 2011).

Id. at 1138.

Id. at 1139.

Id. Id. at 1140.

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courts should not overlook—but seemingly do—is that counsel encounter specific difficulties when engaging with forensic science.

There are a number of reasons why this rationale might be significant. First, as Professor Frederic I. Lederer notes, “[L]awyers generally lack significant scientific training. This educational deficiency often places lawyers at a disadvantage when confronted with scientific evidence. . . . [L]awyers . . . often fail to ask the right questions and uncritically accept scientific assertions.”177 The Forensic Science Report also recognized that this was a significant issue, stating—eleven times—that “lawyers and judges often have insufficient training and background in scientific methodology, and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence that is offered in trial.”178 This deficiency is often attributed to a science and math “black hole” in legal education—”a black hole that becomes harder to close the more removed it is from law school.”179 Consequently, “[a]s lawyers, we are ill-equipped to speak the language of science.”180 In light of this, it is unsurprising that lawyers fail to make appropriate objections, employ useful strategies, hire relevant experts, and ask potent questions on cross and direct examination or in admissibility hearings, as exemplified in the cases above. Of course, lawyers might rationally choose to not object to errors, “hoping for a favorable outcome from the flawed proceeding but calling foul if the attorneys are displeased with the results.”181 But Kim argues that a careful analysis reveals the risk of strategic behavior to be an illusion visible only in hindsight. Granting relief from errors not objected to at trial can only encourage strategic behavior by attorneys if the

177. Frederic I. Lederer, Scientific Evidence—An Introduction, 25 WM. & MARY L. REV. 517, 519–20 (1984) (citing Howard T. Markey, Jurisprudence or “Juriscience”?, 25 WM. & MARY L. REV. 525, 529–32 (1984)).

178. See Jessica D. Gabel, Forensiphilia: Is Public Fascination with Forensic Science a Love Affair or Fatal Attraction?, 36 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 233, 258 (2010).

179. Id. at 257–58.

180. Id. at 258.

181. Kim, supra note 10, at 586.

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attorneys know, ex ante, that their clients will have a reasonable likelihood of obtaining relief on appeal.182 Given the legal landscape, this sort of strategy does not make sense in firearms-identification cases. Legal authorities clearly indicate that appeals on such grounds are routinely denied, and courts underscore the utility of cross-examination to weed out frailties in forensic evidence. In addition, as discussed above, the application of harmless-error rules also makes this sort of strategy “highly irrational”183 because courts tend to label even overstated firearmsidentification evidence as non-prejudicial.

The above cases also demonstrate Professor Saks’s point that counsel’s inability to engage with science means that counsel can overlook the most accessible and vital information. Saks gives the following example: The National Academy of Sciences was asked by the FBI to evaluate voice spectrography used for the purpose of identifying suspects, and the Academy assembled a diverse and first-rate panel of experts to examine the scientific evidence on the question. The Academy published a detailed report of their conclusions, which the FBI promptly adverted to.

Lawyers in trials around the country failed to find and bring the report to the attention of judges, judges failed to find the report, and several courts which clearly knew of the report failed to learn from it.184 Saks concludes that “the adversarial process failed to motivate lawyers to find and offer the most important evidence on the subject at issue.”185 The Sebbern case demonstrates this issue clearly in the context of firearms-identification evidence. In that case, appellate counsel did not locate clearly relevant legal authorities and therefore missed the opportunity to apply them in favor of his client. What is really concerning is that counsel neglected to identify vital legal sources—his bread and butter—rather than scientific literature, which is arguably less accessible. This issue may also be highlighted by the 182. Id. 183. Id. 184. Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, 49 HASTINGS L.J. 1069, 1137 (1998).

185. Id.

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many lawyers who continue to apply for wholesale exclusion of firearms-identification evidence on the basis it is unreliable, rather than construct narrower arguments aimed at limiting expert testimony. The courts are clearly not persuaded that such evidence is inadmissible, but there is ample authority to couch an effective argument that such testimony should be limited.

A second reason why courts should not overlook the specific difficulties counsel may encounter with forensic science relates to resources. The availability of resources is important when discussing the restriction of post-conviction review on the basis that it incentivizes defense counsel to perform effectively at trial. As Kim explains, while “persuasive in the abstract, as a practical matter, reducing the number of trial errors would generally require attorneys to spend more time and resources representing each client.”186 Most attorneys already ration the time they have with each client, so although restricted post-conviction review may make defense counsel want to provide enhanced representation, it “will generally have little effect on the actual representation they provide.”187 Forensic experts can be expensive to hire and time-consuming to apply for; counsel cannot “magic up” these resources (along with an adequate scientific knowledge to engage competently with the expert) simply because post-conviction review is limited.188 A third reason why courts consider the specific difficulties counsel may encounter with forensic science is the limitations of the adversarial system itself. As discussed above, research shows that cross-examination and rebuttal witnesses do not dilute the impact of individualization testimony given by experts. As Saks and McQusiton-Surrett explain, “[U]nfortunately, cross-examination and the use of opposing experts do not appear to effectively counter expert testimony, regardless of the logical vulnerability of the initial expert testimony.”189 There are similar findings in mock-jury studies: 186. Kim, supra note 10, at 564.

187. Id. 188. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 126 (2008) (“Our system of criminal review certainly does not privilege factual claims.

Locating an alibi witness, obtaining experts to challenge forensic evidence or undermine eyewitness identifications, or presenting evidence of defendants’ lack of capacity requires substantial resources and time.”). The depth of a defendant’s pockets can be vital when it comes to presenting rebuttal evidence and experts. See, e.g., RICHARD GABRIEL, ACQUITTAL: AN INSIDER REVEALS THE STORIES BEHIND TODAY’S MOST FAMOUS VERDICTS 87–88 (2014).

189. McQuiston-Surrett & Saks, supra note 102, at 1189.

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For example, in mock jury studies about the effectiveness of cross-examination, it apparently made little difference whether the defense challenged the expert testimony; whether the defense pointed out in cross examination that the expert’s conclusions were inconsistent with prior research and that the expert had not followed standard methodology; whether the defense not only cross-examined the prosecution expert, but also put on its own expert. Although the jurors discussed the expert evidence in their deliberations, and although there was a strong correlation between the prosecution expert’s testimony and the jury’s verdict preferences, the results did not vary among the first three conditions.190 For example, although the court highlighted that trial counsel in Jones did not provide relevant rebuttal experts, it is likely that any such testimony would not have overcome the State’s case, especially as it likely accorded with “beliefs and expectations already held by the jurors.”191 Jurors appear to have inflated expectations of the capabilities of forensic science to match suspects to crimes,192 so given the expert in Jones connected the defendant’s firearm to the crime with certainty, rebuttal expert evidence (and cross examination) may well have been fruitless. The adversarial process is not a cure for shaky expert forensic evidence.

Thus, defense counsel is tackling firearms-identification cases with blunt tools, including counsel’s own scientific knowledge and ability to engage with scientific evidence, limited resources, and a low-impact and depleted adversarial arsenal. Courts should recognize these limitations when considering challenges to firearmsidentification evidence. Before restricting post-conviction review, or other motions, on the basis that counsel should get it right the first time, courts should recognize that this is likely very difficult to do.

V. CONCLUSION By focusing on firearms-identification evidence, this Article has set out the controversy between finality and the impact of forensic190. Erica Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 CARDOZO L. REV. 1369, 1407 (2009).

191. McQuiston-Surrett & Saks, supra note 102, at 1187.

192. Id. at 1188.

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identification evidence in criminal cases. Two particular finality interests are prominent in court decisions rejecting challenges to firearms-identification evidence—namely preventing frivolous claims from flooding the system and incentivizing defense counsel to perform more effectively. In relation to the former, courts often conclude that admitting firearms-identification evidence was nonprejudicial or harmless in light of other evidence against the defendant. In relation to the latter, the courts emphasize the importance of the adversarial system—defense counsels’ ability to weed out frailties in forensic evidence via cross-examination.

Recent cases challenging firearms-identification evidence showcase the influence and implications of these finality interests on judicial decision-making. By rationalizing their decisions in this way, judges are overlooking important difficulties both lawyers and jurors have when engaging with forensic-identification evidence.

Specifically, when terming the unsound admission of such evidence as harmless, courts are overlooking the high impact that scientific evidence has on already science-thirsty jurors who find comfort in alleged expert certainty, have inflated expectations of science, and have general difficulties engaging with scientific evidence accurately.

Similarly, when emphasizing the role of defense counsel (and the adversarial system) to weed out frailties in forensic evidence, courts overlook that counsel is often equipped with only blunt tools in the form of counsel’s own scientific knowledge and ability to engage with scientific evidence, limited resources, and a low-impact adversarial arsenal.

By choosing “finality at all costs,” the criminal justice system is “destined to court either scandal or injustice, and perhaps both.”193 This statement should resonate in cases involving challenges to forensic-identification evidence, given 47% of the now 329 postconviction DNA-evidence exonerations in America are attributable, in some way, to invalidated or unreliable forensic evidence.194 In light of this, and the points raised in this Article, the courts should 193. Murphy, supra note 30, at 672.

194. See The Cases: DNA Exoneree Profiles, INNOCENCE PROJECT, http://www.innocenceproject.org/cases-false-imprisonment/frontpage#c10=published&b_start=0&c4=Exonerated+by+DNA (last visited Apr. 11, 2015) (noting that 155 out of 329 post-conviction DNA exonerations can be attributed, in whole or in part, to invalid or improper forensic science). For an excellent discussion about the intersection of innocence and finality, see Sperling, supra note 12, at 144.

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take new perspectives on these finality interests in such cases and more meaningfully consider the issues that arise when law consumes science.

COMMENT WHEN FEAR MEETS REALITY: HOW THE PROSECUTION OF BRADLEY MANNING WAS NOT AN ASSAULT ON THE FIRST AMENDMENT JORDAN A. WILSON* ABSTRACT Although debate about the First Amendment rights of government whistleblowers certainly exists, a much more heated debate arises concerning the rights of third parties who choose to publish the leaked material. This debate is intensified when the government attempts to use military law and apply military jurisdiction to civilians.

The court martial of Private First Class Bradley Manning raised the specific question of whether charges under the Uniform Code of Military Justice (UCMJ) may be brought against civilian news publications who choose to publish the classified information. This question led to a general fear that the UCMJ could be used to attack free speech and freedom of the press.

While the UCMJ does allow for military jurisdiction over civilians, this application is generally discouraged by both the Supreme Court of the United States and international law. The limited circumstances where jurisdiction over civilians is allowed do not give the government general oversight over the media. As a result, the UCMJ does not pose a threat to First Amendment rights.

As cases involving government leakers increase due to the ease of disseminating information to a widespread audience via the internet, it is important to understand both the extent and limitations of the government’s ability to prosecute. In the Manning trial, the “aiding the enemy” charge provided the government with a correct and powerful tool to prosecute. This was not an example of government overreach because, even if the government had convicted Manning of

* Jordan A. Wilson is a JD Candidate at Western Michigan University Thomas M. Cooley Law School in Lansing, Michigan. He received his Bachelor of Science in Politics and Policy from Liberty University in 2012. Mr. Wilson currently serves as an officer in the United States Army Reserve. Special thanks go to Professor William Wagner for his guidance throughout the editing process.

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aiding the enemy, First Amendment rights would not have been diminished.

On a much larger scale, the Bradley Manning trial provides a possible glimpse into future prosecutions that will continue to test the balancing between protecting individual liberty interests guaranteed by the Constitution and the duty of the federal government to maintain a robust national security.

TABLE OF CONTENTS I.INTRODUCTION ............................................................................... 490 II.OVERVIEW ................................................................................... 492 III.THE PROSECUTION OF MANNING ................................................. 495 A. Freedom of Speech ........................................................... 496 1. National-Security Limitations .................................... 497 2. National-Security Leaks ............................................ 498 B. Non-Disclosure Agreements ............................................. 500 C. Espionage Act ................................................................... 502 D. The UCMJ and Aiding the Enemy .................................... 504 1. Expanding the Jurisdictional Reach of the UCMJ ..... 504 2. Article 104—Aiding the Enemy ................................. 508 IV.ANALYSIS ................................................................................... 514 V. CONCLUSION ................................................................................ 518 I.

INTRODUCTION

From the moment the government delivered its opening statement, it was apparent that the 2013 trial of Private First Class (PFC) Bradley Manning would be an aggressive effort on the government’s part. The purpose of the prosecution was not only to render judgment on Manning’s actions but also to send a clear message discouraging individuals from leaking classified materials, harming national-security interests. Although this was the message that the government intended to send, it was a different message that caught the attention of civil-rights activists. Many feared that Manning’s prosecution would pave the way for future attacks on First Amendment rights. There was also a general fear that the government’s case went well beyond previous whistleblower prosecutions and would serve as a dangerous precedent.

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The government charged Manning with aiding the enemy, a violation of Article 104 of the Uniform Code of Military Justice (UCMJ),1 which is a capital offense that can be applied to civilians in limited circumstances.2 This raised numerous legal questions: Was the government violating Manning’s First Amendment rights or the First Amendment rights of members of the news media who leaked or published classified documents? Could the UCMJ be used to prosecute civilian media members or whistleblowers? And was this ultimately a government overreach?

The Supreme Court of the United States has long held that national-security concerns allow certain limitations to be placed on First Amendment rights. These limitations demand the highest standard of review and are subject to strict scrutiny under the Constitution.

The government has a duty to provide for the common defense.3 This duty is an explicitly enumerated power granted to the government by the Constitution.4 Some argue that the federal government’s only mandatory role is providing for the defense of the nation.5 Although national security is a valid governmental interest,6

1. 10 U.S.C.A. § 904 (Westlaw 2014).

2. See Memorandum from Robert M. Gates, U.S Sec’y of Def., to the Sec’ys of the Military Dep’ts, Chairman of the Joint Chiefs of Staff, Under Sec’ys of Def., Commanders of the Combatant Commands (Mar. 10, 2008), http://www.justice. gov/criminal/hrsp/docs/03-10-08dod-ucmj.pdf [hereinafter Gates Memorandum] (discussing UCMJ jurisdiction over non-military personnel).

3. U.S. CONST. pmbl.

4. See U.S. CONST. art. I, § 8, cl. 1; see also Laura K. Donohue, The Limits of National Security, 48 AM. CRIM. L. REV. 1573, 1577–87 (2011); Jason Mazzone, The Security Constitution, 53 UCLA L. REV. 29 (2005).

5. JIM TALENT, THE HERITAGE FOUNDATION, A CONSTITUTIONAL BASIS FOR DEFENSE (June 1, 2010), http://www.heritage.org/research/reports/2010/06/aconstitutional-basis-for-defense.

Most of the powers granted to Congress are permissive in nature.

Congress is given certain authorities but not required by the Constitution to exercise them. For example, Article One, Section Eight gives Congress power to pass a bankruptcy code, but Congress actually did not enact bankruptcy laws until well into the 19th century. But the Constitution does require the federal government to protect the nation. Article Four, Section Four states that the “United States shall guarantee to every State a republican form of government and shall protect each of them against invasion.” In other words, even if the federal government chose to exercise no other power, it must, under the Constitution, provide for the common defense.

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the government does not have free rein to enforce this interest. The government’s power must be balanced against individual liberty interests, such as those guaranteed by the First Amendment.

The history of the Espionage Act and the UCMJ show that the government has certain legal avenues available to prosecute individuals, both civilian and military, who leak classified information that threatens national security. But clear differences exist between how the government can charge military personnel as opposed to civilians. Although limited overlap exists in the application of the UCMJ to civilians, it simply does not give the government general oversight of the media.

The government’s prosecution of Manning was appropriate. His decision to leak classified documents violated his non-disclosure agreements and was harmful to national security. The leaked documents became directly accessible to enemies of the United States. Had the government been successful in convicting Manning on the Article 104 charge, the widespread effects that Manning’s supporters feared would not have materialized.

The government’s strong stance stood as a warning to future leakers: in confronting threats to national security, the government will apply the full extent of the law. The government sought to defend the same liberty interests that Manning’s supporters believed were under attack and that Manning’s actions had threatened.

II.

OVERVIEW

On July 30, 2013, Manning was convicted of twenty crimes arising from his decision to leak classified documents to WikiLeaks, an internet whistleblower website.7 Manning is an extremely

Id. 6. See, e.g., Snepp v. United States, 444 U.S. 507, 511–12 (1980); United States v. Robel, 389 U.S. 258, 264 (1967); United States v. Reynolds, 345 U.S. 1, 7–8 (1953); see also Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (explaining the Court’s deferral to the executive branch in matters of foreign policy and national security).

7. See Cully Stimson, A Quick Primer on Military Justice and the Manning Verdict, LAWFARE BLOG (July 30, 2013, 4:42 PM), http://www.lawfareblog.com/ 2013/07/a-quick-primer-on-military-justice-and-the-manning-verdict/; Chelsea J. Carter et al., Bradley Manning Acquitted of Aiding the Enemy but Guilty of Espionage Violations, CNN (July 31, 2013, 2:00 AM), http://www.cnn.com/2013/ 07/30/justice/manning-court-martial/.

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polarizing figure,8 like other recent whistleblowers who have captured headlines in the post-9/11 United States, such as Julian Assange9 and Edward Snowden.10 Some people believe that whistleblowers are government watchdogs who provide an invaluable service to the public. To others, Manning is simply viewed as a traitor who orchestrated one of the most damaging attacks on national security in U.S. history.11 The Manning case will be the source of countless legal analyses on topics including gender identity,12 mental disorders,13 free speech,14 and national security.15 The internet makes it easier than ever for someone to leak classified information to millions of people within minutes of the disclosure.16 “The conditions for such an event . . . had been gathering for years: the proliferation of digital

8. Carrie Johnson, Intent to Harm at Center of Bradley Manning’s Trial, NPR (June 3, 2013, 3:35 AM), http://www.npr.org/2013/06/03/188146218/intent-toharm-at-center-of-bradley-mannings-trial (statement of Elizabeth Goitein) (“Bradley Manning is a very polarizing figure. People either think that he is a hero or they think he’s a traitor . . . .”).

9. See generally Raffi Khatchadourian, No Secrets: Julian Assange’s Mission for Total Transparency, NEW YORKER (June 7, 2010), http://www.newyorker.com/ magazine/2010/06/07/no-secrets.

10. See generally Glenn Greenwald et. al., Edward Snowden: The Whistleblower Behind the NSA Surveillance Revelations, THE GUARDIAN (June 9, 2013), http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsawhistleblower-surveillance.

11. See Ernesto Londoño, Prosecutor Portrays Pfc. Bradley Manning as Traitor During Closing Arguments, WASH. POST, July 25, 2013, http://www. washingtonpost.com/world/national-security/prosecutor-portrays-pfc-bradleymanning-as-traitor-during-closing-arguments/2013/07/25/80bd989e-f574-11e2a2f1-a7acf9bd5d3a_story.html.

12. See Michael Pearson, Bradley Manning Wants to Live as a Woman, Be Known as Chelsea, CNN (Aug. 23, 2013, 6:45 AM), http://www.cnn.com/2013/08/ 22/us/bradley-manning/.

13. See John Fritze, Defense Raises Questions About Manning’s Mental Health, BALTIMORE SUN, Aug. 12, 2013, http://www.baltimoresun.com/news/maryland/bsmd-manning-sentencing-20130812,0,3504562.story.

14. See Ed Hightower, Prosecution Case vs. Bradley Manning Threatens First Amendment Rights to Free Speech and Press, WORLD SOCIALIST WEB SITE (July 4, 2013), http://www.wsws.org/en/articles/2013/07/04/mann-j04.html.

15. See Denver Nicks, Did Bradley Manning Actually Harm National Security?, NATION (Jan. 12, 2012), http://www.thenation.com/article/165626/didbradley-manning-actually-harm-national-security.

16. See Arjun Kharpal, The Snowden Effect? Whistleblowing Sees Sharp Rise, CNBC (Jan. 8, 2014, 5:40 AM), http://www.cnbc.com/id/101318890.

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information, the growth of the U.S. intelligence community, technological innovations . . . and increasingly blurred journalism.”17 Thus, Manning’s case deserves a thorough analysis to determine whether it will encourage other individuals, entrusted with the nation’s most closely guarded secrets, to come forward and release them to the world without fear of conviction.

Although Manning received one of the harshest sentences ever handed down against a leaker, he managed to elude conviction on the most serious charge—aiding the enemy.18 In fact, it was this charge that created the most public controversy.19 Critics of the prosecution argued that charging Manning with aiding the enemy set a dangerous precedent because this charge carried the maximum sentence of death.20 Civil-liberties groups argued that charging Manning with aiding the enemy was an affront to journalism and quickly took up Manning’s cause as their own.

Because the prosecution did not convict Manning of the aidingthe-enemy charge, the question remains: Can the government convict a leaker of aiding the enemy without setting a dangerous precedent that threatens First Amendment rights? To answer this question, it is imperative to examine whether the government should have charged Manning under Article 104 and whether civilians can be tried under the UCMJ for aiding the enemy.

First, the government properly charged Manning with a violation of Article 104. Second, and perhaps more importantly, the UCMJ has a very limited jurisdictional reach. Although it can be applied to civilians in limited circumstances, its jurisdiction cannot be used to prosecute news organizations that decide to publish leaked material.

It simply does not pose the threat to free speech that Manning’s

17. Nathalie R. Maréchal, Hackers, Heavies & Heroes: Dissent & Control in Cyberworld 35, (Dec. 19, 2011) (unpublished M.A. thesis, American University), available at http://ssrn.com/abstract=2047189.

18. See 10 U.S.C.A. § 904 (Westlaw 2014).

19. See, e.g., Bradley Manning: US Must Drop “Aiding the Enemy” Charge, AMNESTY INT’L (July 12, 2013), http://www.amnesty.org/en/news/bradleymanning-us-must-drop-aiding-enemy-charge-2013-07-12; Gloria Goodale, How Bradley Manning’s ‘Aiding the Enemy’ Charge Could Jolt Journalism, CHRISTIAN SCI. MONITOR, July 25, 2013, http://www.csmonitor.com/USA/Justice/2013/0725/ How-Bradley-Manning-s-aiding-the-enemy-charge-could-jolt-journalism; Ben Wizner, The Government’s Overreach on Bradley Manning, ACLU (Apr. 26, 2012, 10:04 AM), https://www.aclu.org/blog/free-speech-national-security/governmentsoverreach-bradley-manning.

20. § 904.

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defenders argued. There are clear differences between military personnel and civilians that limit the government’s ability to prosecute the latter. Manning’s choice to put on his nation’s uniform subjected him to greater prosecutorial oversight. The government should be able to aggressively prosecute leakers without disrupting the First Amendment. Manning’s case is more about a missed opportunity than it is a dangerous precedent.

III.

THE PROSECUTION OF MANNING

The government’s charge sheet for Manning contained 22 counts21 including engaging in espionage,22 failure to obey a lawful order,23 computer fraud,24 theft,25 and aiding the enemy. If the prosecution had been successful in proving all charges, Manning would have faced more than 150 years in prison.26 He pled guilty to the lesser offenses, which carried a maximum prison term of 20 years.27 The most serious charge that Manning faced—the only capital offense the government was seeking—was aiding the enemy under Article 104 of the UCMJ. Although Article 104 is a capital charge, the prosecution chose not to seek the death penalty.28 But the majority of the charges were brought under the Espionage Act.29 This case marked the “sixth time that the Espionage Act has been unleashed against the source of an official leak of classified information under the Obama administration.”30 Despite Manning’s

21. Charge Sheet, DD Form 458 (Mar. 1, 2011), available at http://graphics8.nytimes.com/packages/pdf/politics/20110302-manning.pdf.

22. 18 U.S.C.A. § 793(e) (Westlaw 2014).

23. 10 U.S.C.A. § 892 (Westlaw 2014).

24. 18 U.S.C.A. § 1030(a) (Westlaw 2014).

25. 18 U.S.C.A. § 641 (Westlaw 2014).

26. Ed Pilkington, Bradley Manning’s WikiLeaks Trial: What Are the Key Issues at Stake?, THE GUARDIAN (June 3, 2013, 2:00), http://www.theguardian. com/world/2013/jun/03/bradley-manning-wikileaks-trial-key-issues.

27. Id. 28. Larry Shaughnessy, 22 New Charges for U.S. WikiLeaks Suspect Manning, CNN (Mar. 3, 2011), http://www.cnn.com/2011/CRIME/03/02/wikileaks.suspect/.

Although the Army notified the defense team that prosecutors would not seek the death penalty, it was ultimately up to the presiding judge to determine the final penalty at sentencing. Id. 29. See Charge Sheet, supra note 23.

30. Ed Pilkington, Bradley Manning Prosecution to Call Full Witness List Despite Guilty Plea, THE GUARDIAN (Mar. 1, 2013, 13:36), http://www. theguardian.com/world/2013/mar/01/bradley-manning-prosecution-guilty-plea.

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guilty pleas to ten of the original 22 charges, the government constructed a list of 141 witnesses and prepared for a 12-week trial.31 The most serious charges required the prosecution to define the term enemy and to determine whether Manning specifically intended to aid the enemy. The prosecution was also faced with the challenge of showing that Manning’s actions “‘wrongfully and wantonly’ caus[ed] to be published on the internet intelligence belonging to the US, ‘having knowledge that intelligence published on the internet is accessible to the enemy.’”32 This theory of causation extended not only to the charges under the Espionage Act but also to the Article 104 charge. Under Article 104, the prosecution alleged that “Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means.”33 Under this charge, the prosecution had to prove that Manning knowingly gave intelligence to the enemy through indirect means.

Despite these legal hurdles, perhaps the biggest problem the prosecution faced was pressure applied by outside groups. These groups feared that the prosecution posed a direct threat to the First Amendment.

A.

Freedom of Speech

The constitutional rights of freedom of speech and freedom of the press are frequently litigated and tightly protected.34 Supreme Court jurisprudence involving the First Amendment continues to evolve in the face of increasing national-security concerns.35 Free-speech

31. Id. 32. Ed Pilkington, Bradley Manning Verdict: Cleared of ‘Aiding the Enemy’ but Guilty of Other Charges, THE GUARDIAN (July 30, 2013), http://www. theguardian.com/world/2013/jul/30/bradley-manning-wikileaks-judge-verdict.

33. United States v. Manning, No. 9504 (U.S. Army 1st Jud. Cir. Aug. 15, 2013).

34. See, e.g., Citizens United v. FEC, 558 U.S. 310 (2010); Reno v. ACLU, 521 U.S. 844 (1997); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); N.Y. Times Co. v. United States, 403 U.S. 713 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); Pickering v. Bd. of Educ., 391 U.S. 563 (1968); De Jonge v. Oregon, 299 U.S. 353 (1937); Near v. Minnesota, 283 U.S. 697 (1931); Whitney v.

California, 274 U.S. 357 (1927); Schenck v. United States, 249 U.S. 47 (1919).

35. See Michael Kahn, The Origination and Early Development of Free Speech in the United States: A Brief Overview, FLA. B.J., Oct. 2002, at 71, 74

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defenders have been among Manning’s most ardent and vocal supporters.36 To some advocacy groups, Manning is a hero who used his unique position and his access to classified documents to promote the noble objectives of government oversight and freedom of the press. To some, he is considered the very “face of heroism.”37 Yochai Benkler, a Harvard law professor who testified for the defense and was one of the prosecution’s sharpest critics, called the charge “the prosecution’s effort to launch the most dangerous assault on investigative journalism and the free press in the area of national security that we have seen in decades.”38 In order to better understand this contention, it is necessary to examine the legal history of the First Amendment within the context of national-security concerns.

1.

National-Security Limitations

The Supreme Court of the United States has clearly identified certain situations where limitations may be placed upon First Amendment rights.39 Although limitations exist, the Court has established a very high threshold for recognizing such limitations.

Indeed, “few things, save grave national security concerns, are sufficient to override First Amendment interests.”40 The Court has said, “The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the

(summarizing the origins of free speech in the United States and the corresponding limitations that have been imposed because of nation-security concerns).

36. See generally Supporters, FREE CHELSEA MANNING, http://www. privatemanning.org/ourwork/supporters (last visited Oct. 10, 2014).

37. Glenn Greenwald, Bradley Manning: The Face of Heroism, THE GUARDIAN (Feb. 28, 2013, 3:38 PM), http://www.theguardian.com/commentisfree/2013/feb/ 28/bradley-manning-heroism-pleads-guilty.

38. Charles Savage, Manning Is Acquitted of Aiding the Enemy, N.Y. TIMES, July 30, 2013, http://www.nytimes.com/2013/07/31/us/bradley-manning-verdict. html?pagewanted=all&_r=1&.

39. See generally Kate Kovarovic, Comment, When the Nation Springs a [Wiki]Leak: The “National Security” Attack on Free Speech, 14 TOURO INT’L L. REV. 273 (2011) (discussing the development of the balance between First Amendment rights and national-security concerns).

40. United States v. Progressive, Inc., 467 F. Supp. 990, 992–93 (W.D. Wis. 1979).

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articulated interest.”41 When the Court finds that an articulated interest has been established, it applies strict scrutiny.42 The strict-scrutiny test was first applied in Korematsu v. United States, which analyzed the government’s use of internment camps during World War II.43 Courts have further refined this test by requiring that a “grave, direct, immediate and irreparable harm” must be clearly identified when national-security concerns conflict with First Amendment rights.44 The Court has clearly established the rule that limitations may be placed on constitutionally protected rights, particularly free speech, in order to protect the security of the nation.

“There is no denying that the national security exception to free speech is a valid principle under both domestic and international law.”45 And one such limitation is created during times of war.

In Near v. Minnesota,46 the Court stated, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”47 The Near wartime exception is clearly applicable to Manning’s leaks because the leaked documents concerned the conflicts in Iraq and Afghanistan.48 The history of the Court’s balancing of First Amendment rights against national-security concerns goes to the very heart of the debate over government leakers.

2.

National-Security Leaks

The preeminent case dealing with the First Amendment rights of a government leaker is United States v. Morison.49 In Morison, an American naval intelligence officer gave classified photographs of Soviet naval preparations to a British publisher.50 The defendant

41. Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

42. See United States v. Carolene Prods. Co., 304 U.S. 144, 152–54 (1938).

43. 323 U.S. 214 (1944).

44. See Progressive, 467 F. Supp. at 996.

45. See Kovarovic, supra note 39, at 297.

46. 283 U.S. 697 (1931).

47. Id. at 716 (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)).

48. Melissa Hannah Opper, Comment, WikiLeaks: Balancing First Amendment Rights with National Security, 31 LOY. L.A. ENT. L. REV. 237, 250 (2010–2011) (examining how dicta in Near should apply to WikiLeaks).

49. 844 F.2d 1057 (4th Cir. 1988).

50. Id. at 1061.

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attempted to argue that the public’s inherent right to know what business their government was conducting trumped any restrictions placed on him to safeguard intelligence secrets.51 The court did not accept the defendant’s argument.52 In a concurring opinion, Judge Wilkinson made the point that “the First Amendment imposes no blanket prohibition on prosecutions for unauthorized leaks of damaging national security information.”53 Thus, the First Amendment cannot be used as a get-out-of-jail-free card when someone violates an agreement to protect national secrets.

The Morison court relied on the fact that the defendant was an experienced intelligence officer and that he was well aware of the regulations dealing with handling classified national-defense materials.54 In Manning’s case, this is analogous to the point the prosecution attempted, but ultimately failed, to establish.55 The prosecution relied on the specific training Manning received and also the non-disclosure agreements that he signed.

Until Manning’s prosecution, the most famous case dealing with national-security leaks and freedom of speech was N.Y. Times Co. v.

United States.56 This case, better known as the “Pentagon Papers” case, dealt with the 1971 leak of a classified government report detailing the United States’ involvement in Vietnam.57 This seminal case focused on the issue of balancing First Amendment rights with national-security concerns. In a concurring opinion, Justice Black stated: The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that

51. Id. at 1077.

52. Id. at 1068.

53. Id. at 1085 (Wilkinson, J., concurring).

54. Id. at 1073 (majority opinion).

55. David Dishneau & Pauline Jelnik, Bradley Manning Acquitted of Aiding the Enemy, REAL CLEAR DEFENSE (July 30, 2013), http://www.realcleardefense.com/ articles/2013/07/30/bradley_manning_acquitted_of_aiding_the_enemy_106725.ht ml.

56. 403 U.S. 713 (1971) (per curiam).

57. See id. at 714.

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freedom of speech, press, religion, and assembly should not be abridged.58 Justice Douglas also noted that “[s]ecrecy in government is fundamentally anti-democratic.”59 Although limitations may be applied, there is a very high threshold for the government to show that national-security concerns trump an individual’s First Amendment rights.

B.

Non-Disclosure Agreements

The major difference between a military leaker and a civilian who publishes leaked information is the absence of a non-disclosure agreement (NDA). By signing an NDA, government employees agree to certain limitations on their First Amendment rights. Therefore, when he signed an NDA, Manning acknowledged that disclosing intelligence secrets constituted grounds for prosecution.

In United States v. Marchetti,60 the government sought an injunction against a former CIA official attempting to publish a book that contained classified materials.61 CIA employees are required to sign an NDA as a condition of their employment.62 And the Marchetti court made the point that the law will typically imply such an agreement even in the absence of a formal, signed document.63 This established a higher standard for government employees. But an NDA “lends a high degree of reasonableness to the contract in its protection of classified information from unauthorized disclosure.”64 The court stated that it is clearly the employee’s choice whether to agree to sign such a document.65 And this voluntary choice limits the employee’s constitutional rights based on the employee’s position.66

58. Id. at 719 (Black, J., concurring).

59. Id. at 724 (Douglas, J., concurring).

60. 466 F.2d 1309 (4th Cir. 1972).

61. Id. at 1311–13; see also Snepp v. United States, 444 U.S. 507, 512–13 (1980) (per curiam) (upholding the CIA’s power to require prepublication review when a former CIA agent sought to publish a book that could potentially contain classified national-security information).

62.

63.

64.

65.

66.

Marchetti, 466 F.2d at 1316.

Id. Id. See id.

See id. at 1317.

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Manning, like all United States military members with access to classified documents, signed an NDA. Leaking classified information is a clear violation of these NDAs. A standard NDA includes the language: I understand and accept that by being granted access to classified information, special confidence and trust shall be placed in me by the United States government. ....

I have been advised that the unauthorized disclosure . . . of classified information could cause damage . . . to the United States or could be used to advantage by a foreign nation.67 This language gives the government a direct means to prosecute leakers for violating an NDA. As the prosecution pointed out, Manning signed seven separate NDAs over the course of his military service.68 When prosecutions arise from leaks of classified information, the absence of a signed NDA by a party limits the government’s ability to prosecute. In United States v. Aguilar,69 the Supreme Court stated, “As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members.”70 Aguilar establishes that by signing an NDA, the individuals consent to limitations on their First Amendment rights.71 As such, Manning’s choice to violate his signed NDAs should be viewed as a breach of contract. The breach grants the government extensive prosecutorial powers that could not likewise be used against an entity that was not bound by a similar voluntarily signed agreement.

Gabriel Schoenfeld of the Hudson Institute believes that the government was well within its rights to punish Manning for this

67. INFORMATION SECURITY OVERSIGHT OFFICE, NSN 7540-01-280-5499, STANDARD FORM 312, CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT 1 (July 2013), available at http://www.archives.gov/isoo/security-forms/sf312.pdf.

68. Alexa O’Brien, Is Judge Denise Lind Bradley Manning’s Biggest Enemy?, DAILY BEAST (July 19, 2013), http://www.thedailybeast.com/articles/2013/07/19/ is-judge-deborah-lind-bradley-manning-s-biggest-enemy.html.

69. 515 U.S. 593 (1995).

70. Id. at 606 (1995).

71. See id. at 605–06.

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violation. He writes, “Our government is acting fully within its rights and with justice on its side when it punishes someone who betrays his oath, abuses his position of responsibility in a way that weakens our country and imperils friends and allies around the world.”72 Another writer makes this point: “That’s why we prosecute the leakers, though, and not the reporters. Reporters do not take an oath to protect classified material.”73 To put it plainly, Manning violated a voluntarily signed contract, whereas potential reporters of leaked information would not.

Further, the concerns over First Amendment rights must be analyzed in the context of prior cases brought under the Espionage Act.74 This statute provided the grounds for the majority of the charges that the government sought to prove against Manning.75 C.

Espionage Act

The Espionage Act of 1917 was ushered into law as the United States found itself engaged in World War I.76 Since its inception, it has been used to prosecute individuals who have leaked classified documents.77 The Espionage Act prohibits individuals with unauthorized access to information about the national defense that could be used to injure the United States or benefit any foreign nation from willfully communicating such information.78 The preeminent case pertaining to the Espionage Act is Schenck v. United States.79 In Schenck, the Supreme Court of the United

72. Gabriel Schoenfeld, Bradley Manning Betrayed America, CNN (July 31, 2013, 1:40 PM), http://www.cnn.com/2013/07/31/opinion/schoenfeld-manningverdict/.

73. Ed Morrissey, NYT Reporter Calls Obama WH the “Greatest Enemy of Press Freedom,” HOT AIR (Mar. 25, 2014, 10:41 AM), http://hotair.com/archives/ 2014/03/25/nyt-reporter-calls-obama-wh-the-greatest-enemy-of-press-freedom/.

74. 18 U.S.C.A. §§ 792–99 (Westlaw 2014).

75. See Schoenfeld, supra note 72; see generally Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 930, 936–42 (1973) (discussing the Espionage Act of 1917).

76. See GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 137 (2004) (discussing the history of the Espionage Act of 1917).

77. See Classified Information Procedures Act, 18 U.S.C.A. app. 3 § 1(a) (Westlaw 2014) (“‘Classified information’ . . . means any information or material that has been determined by the United States . . . to require protection against unauthorized disclosure for reasons of national security . . . .”).

78. 18 U.S.C.A. § 793(e) (Westlaw 2014).

79. 249 U.S. 47 (1919).

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States determined that it is constitutional to place limits on free speech.80 Although the Court did not officially adopt the test, Justice Holmes introduced the concept of using a clear-and-present-danger test when analyzing the government’s ability to restrict an individual’s free speech.81 In arguing for the test, Justice Holmes stated: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.82 The clear-and-present-danger test shows that an individual’s right to free speech must be balanced with any resulting threats to national security. This test was first applied by the majority of the Court in Thornhill v. Alabama.83 In Gitlow v. New York,84 the Court stated, “It is a fundamental principle, long established, that the freedom of speech and of the press . . . does not confer an absolute right to speak or publish.”85 Gitlow used a bad-tendency test.86 This test asked whether an individual’s right to free speech had a natural tendency to “bring about the substantive evil.”87 The test was later refined in Brandenburg v. Ohio to question whether the speech would produce

80. Id. at 51–52.

81. Id. at 52.

82. Id. 83. 310 U.S. 88, 104–05 (1940) (“Abridgement of liberty . . . can be justified only where the clear danger of substantive evil arises under circumstances affording no opportunity to test the merits of ideas.”). The case had nothing to do with a national-security issue but instead dealt with an Alabama statute that prohibited picketing by labor unions. Id. at 91–93.

84. 268 U.S. 652 (1925).

85. Id. at 666.

86. See id.; see also Patterson v. Colorado, 205 U.S. 454, 462 (1907) (originating the bad-tendency test); Abrams v. United States 250 U.S. 616, 624 (1919) (applying the bad-tendency test).

87. Gitlow, 268 U.S. at 671.

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“imminent lawless action.”88 This standard prevails today and is the standard that the government relied on when prosecuting Manning.

Although the test has evolved over the years, the intent has remained the same.89 The real and potential harm to national security that Manning’s leak caused provided a basis for the prosecution’s argument.90 Manning’s case marked the first time that an individual was convicted under the Espionage Act during the Obama administration, which has taken an increasingly harsh approach to combating government whistleblowers.91 As history shows, courts have balanced First Amendment rights against national-security concerns to determine that government leakers are held to a higher standard due to their unique positions.92 This provided the foundation that the government used to pursue the most serious charge—aiding the enemy.

D. 1.

The UCMJ and Aiding the Enemy

Expanding the Jurisdictional Reach of the UCMJ

The Constitution grants Congress the authority to establish rules to govern the military.93 In 1950, the UCMJ was signed into law by President Truman and became the official code pertaining to military law and military jurisdiction in the United States.94 Article 2 of the

88. 395 U.S. 444, 447 (1969).

89. See Freedom of Expression, ACLU (Oct. 31, 2005), https://www.aclu.org/free-speech/freedom-expression#4 (discussing the history of constitutional tests used to balance First Amendment rights against nationalsecurity concerns).

90. See Ed Pilkington, Manning Conviction under Espionage Act Worries Civil Liberties Campaigners, THE GUARDIAN (July 31, 2013, 10:20 AM), http://www.theguardian.com/world/2013/jul/31/bradley-manning-espionage-actcivil-liberties.

91. See Cora Currier, Charting Obama’s Crackdown on National Security Leaks, PROPUBLICA (July 30, 2013, 3:40 PM), https://www.propublica.org/special/ sealing-loose-lips-charting-obamas-crackdown-on-national-security-leaks.

92. See United States v. Aguilar, 515 U.S. 593, 606 (1995) (stating that the First Amendment is not narrowed if government officials in sensitive, confidential positions have special duties of nondisclosure).

93. U.S. CONST. art. 1, § 8, cl. 14.

94. John S. Cooke, Introduction: Fiftieth Anniversary of the Uniform Code of Military Justice Symposium Edition, 165 MIL. L. REV. 1, 3, 8 (2000).

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UCMJ governs the extent of military jurisdiction.95 The UCMJ applies to all members of the military, to prisoners of war, and to civilians under certain circumstances.96 “Military jurisdiction has undergone significant changes since the enactment of the . . .

UCMJ.”97 These modifications have been “brought about by needs for clarification, change, or both.”98 The war on terror, unlike wars of the past, has increasingly included civilian security and contracting firms. 99 In 2006, the UCMJ was amended in order to expand the reach of its jurisdiction.100 The UCMJ’s personal jurisdiction was expanded to bring in civilian contractors.101 Section 802(a)(10) was amended to replace the word “war” with the phrase “declared war or a contingency operation.”102 “The new language obviates the requirement of a declaration of war by requiring only that the civilians be with the armed forces during a contingency operation.

95. 10 U.S.C.A. § 802 (Westlaw 2014).

96. § 802(a); see also Military Justice Fact Sheets, MARINES.MIL, http://www.hqmc.marines.mil/Portals/135/MJFACTSHTS%5B1%5D.html (last visited Oct. 12, 2014) (stating that “certain specified categories of civilians” are subject to military justice but not when accompanying armed forces during times of peace).

97. Tyler J. Harder, Moving Towards the Apex: Recent Developments in Military Jurisdiction, ARMY LAW., Apr./May 2003, at 3, 3.

98. Id. at 16.

99. See Beyond Blackwater: An Industry Reinvents Itself After the Demise of its Most Controversial Firm, ECONOMIST (Nov. 23, 2013), http://www.economist. com/news/business/21590370-industry-reinvents-itself-after-demise-its-mostcontroversial-firm-beyond-blackwater; see also Contractors Flood into Iraq to Give Al-Qaeda a Run for the Money, RT (Feb. 4, 2014, 12:56 PM), http://rt.com/ news/american-military-contractors-iraq-621/; Private Soldiers: Bullets for Hire, ECONOMIST (Nov. 17, 2012), http://www.economist.com/news/international/ 21566625-business-private-armies-not-only-growing-changing-shape-bulletshire?zid=312&ah=da4ed4425e74339883d473adf5773841 (discussing how private security firms are a $100 billion global industry).

100. See John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. 109–364, § 552, 120 Stat. 2083, 2217 (2006) (amending section 802(a)(10) to read, “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”) (emphasis added). The previous version of this statute did not include the phrase “or a contingency operation.” See 10 U.S.C. § 802(a)(10) (2000).

101. See Marc Lindemann, Civilian Contractors Under Military Law, PARAMETERS, Autumn 2007, at 83, 86–88.

102. See John Warner National Defense Authorization Act for Fiscal Year 2007 § 552.

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The effect of this is to expand the jurisdiction of the military over civilians working with the military.”103 The power to bring civilians under military jurisdiction was not a new concept—it dates back to the Revolutionary War.104 The language change was necessary in order to include the ongoing conflicts in Afghanistan and Iraq.105 Both of these conflicts lacked a formal congressional declaration of war, resulting in a gray area surrounding the prosecution of civilians in the field.106 At the time of the language change in 2006, there were over 100,000 contractors serving in Iraq.107 Further, the Abu Ghraib scandal served to highlight the need to bring certain civilians within the UCMJ’s jurisdiction.108 Despite the widespread publicity of the prison abuse, not one civilian contractor faced prosecution.109 One scholar said the statute was amended in an effort “to close a legal loophole that has enabled contract personnel to escape punishment for violating the law.”110 Civilians who are serving with the military are subject to

103. Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice (“UCMJ”) over Civilians and the Implications of International Human Rights Law, 17 CARDOZO J. INT’L & COMP. L. 59, 71 (2009) (citing Katherine Jackson, Not Quite a Civilian, Not Quite a Soldier: How Five Words Could Subject Civilian Contractors in Iraq and Afghanistan to Military Jurisdiction, 27 J. NAT’L ASS’N ADMIN. L. JUDICIARY 255, 273–74 (2007)).

104. See Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces—a Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Anna Manasco Dionne, Note, “In Time of Whenever the Secretary Says”: The Constitutional Case Against Court-Martial Jurisdiction over Accompanying Civilians During Contingency Operations, 27 YALE L. & POL’Y REV. 205 (2008).

105. See George Friedman, What Happened to the American Declaration of War?, STRATFOR (Mar. 29, 2011, 3:53 AM), http://www.stratfor.com/weekly/ 20110328-what-happened-american-declaration-war.

106. See id.

107. T. Christian Miller, Contractors Outnumber Troops in Iraq, L.A. TIMES, July 4, 2007, http://articles.latimes.com/2007/jul/04/nation/na-private4.

108. See generally Iraq Prison Abuse Scandal Fast Facts, CNN (Oct. 30, 2013, 5:22 PM), http://www.cnn.com/2013/10/30/world/meast/iraq-prison-abuse-scandalfast-facts/ (describing prisoner abuse at the U.S. Army detention center in Abu Ghraib from 2003 to 2006).

109. See id.

110. William Matthews, Some UCMJ Rules Now Cover U.S. Contractors, MARINE CORPS TIMES (Jan. 5, 2007, 5:00 PM), http://www.marinecorpstimes.com/ article/20070105/NEWS/701050309/Some-UCMJ-rules-now-cover-U-Scontractors.

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both military jurisdiction under the UCMJ and also to civilian jurisdiction.111 Following the jurisdictional expansion, former U.S. Secretary of Defense Robert Gates published the guidelines that military commanders were to follow when exercising their jurisdiction over civilians.112 The guidelines instructed commanders to notify the Department of Justice when a civilian was facing charges under the UCMJ to allow the government to “pursue its prosecution of the case in federal district court.”113 Although the language change was originally meant to bring civilian contractors under UCMJ jurisdiction, it has yet to be determined who else may be subject to its jurisdiction.

During the 2003 invasion of Iraq, the Department of Defense allowed the media to cover military operations from within military units.114 Despite this general access, the use of embedded journalists still came with reporting restrictions.115 These restrictions included protecting ongoing operational security, intelligence-gathering activities, and force-specific information.116 Some legal experts believe that the UCMJ could be used to prosecute embedded journalists, which creates new concerns.

Christopher Anders of the ACLU stated, “There may be some logic in applying military standards to civilian military contractors who are taking up arms. But it’s a whole different thing when others are swept up.”117 Peter Singer of the Brookings Institute believes the door is now open to the UCMJ being applied to embedded

111. Stigall, supra note 103, at 81.

112. Gates Memorandum, supra note 2, at 3.

113. Id. at 2.

114. DEP’T OF DEF., PUBLIC AFFAIRS GUIDANCE (PAG) ON EMBEDDING MEDIA DURING POSSIBLE FUTURE OPERATIONS/DEPLOYMENTS IN THE U.S. CENTRAL COMMANDS (CENTCOM) AREA OF RESPONSIBILITY (AOR) para. 2.A (2003), available at http://www.defense.gov/news/feb2003/d20030228pag.pdf (“[M]edia will have long-term, minimally restrictive access to U.S. air, ground and naval forces through embedding.”).

115. See id. para. 3.D–.M, 4.H.3–.4.

116. See id. para. 4 (providing “ground rules for the safety and security of U.S. forces and embedded media”).

117. Griff White, New Law Could Subject Civilians to Military Trial, WASH. POST, Jan. 15, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/ 01/14/AR2007011400906.html.

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journalists.118 This fear is intensified when placed in the context of President Obama’s aggressive prosecution of whistleblowers.119 But the overall jurisdiction of the UCMJ must be analyzed again, and this time with a specific focus on Article 104, which applies to offenses “by all persons whether or not otherwise subject to military law.”120 2.

Article 104—Aiding the Enemy

Aiding the enemy is one of our nation’s oldest recorded military offenses;121 it “is almost as old as warfare itself and . . . may be found in the earliest of recorded military codes.”122 Article 104 is one of the few capital offenses found within the UCMJ.123 This Article reads: Any person who(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a courtmartial or military commission may direct.124 The prosecution against Manning was focused on section (2).

Under this language, Manning could have been found to have aided the enemy in one of two ways: directly or indirectly. On its face,

118. P.W. Singer, Law Catches Up to Private Militaries, MILITARY.COM (Jan. 4, 2007), http://www.military.com/NewsContent/0,13319,121592,00.html.

119. See John Kiriakou, Obama’s Abuse of the Espionage Act is Modern-Day McCarthyism, THE GUARDIAN (Aug. 6, 2013, 8:15 AM), http://www.theguardian. com/commentisfree/2013/aug/06/obama-abuse-espionage-act-mccarthyism.

120. MANUAL FOR COURTS-MARTIAL UNITED STATES pt. IV, para 28.c(1) (2012) (emphasis added), available at http://www.loc.gov/rr/frd/Military_Law/pdf/MCM2012.pdf 121. See United States v. Hamdan, 801 F. Supp. 2d 1247, 1292–1310 (Ct. Mil. Comm’n Rev. 2011).

122. See United States v. Olson, 22 CMR 250, 256 (C.M.A. 1957) (citing the Code of Articles of King Gustavus Adolphus of Sweden, Art. 76 and 77 (1621) and Articles of War of James II, Art. 8 (1688)).

123. See generally 10 U.S.C.A. §§ 890 (assaulting a superior officer during a time of war), 894 (mutiny), 904 (aiding the enemy), 918 (murder) (Westlaw 2014).

124. § 904.

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indirect communication of intelligence appears the most applicable to Manning’s scenario; however, it created unique challenges to the prosecution. Professor Kevin Heller pointed out that “[i]ndirect conveyance is sufficient and the intent to aid is not required” and went on to point out how this creates a difficult standard to prove in court.125 He was ultimately correct: the government struggled to show that enemies of the United States accessed the information leaked by Manning and benefited from its use.

At the heart of the battle over the government’s decision to charge Manning under Article 104 was whether Manning ever intended for enemies of the United States to access the confidential information. The prosecution argued, “This is not a case about an accidental spill of classified information, not a case about a few documents left in . . . a barracks. This is not a government official making discreet disclosures of classified info.”126 Army prosecutor Joe Morrow argued that Manning “systematically harvested information and dumped it onto the Internet into the hands of the enemy.”127 Army Colonel Denise Lind, the presiding judge, decided that for the government to prove this charge, it would have to show that Manning possessed actual knowledge that he was giving intelligence to the enemy.128 This provided the legal hurdle that the government was never able to clear and the reason why Manning escaped conviction on the Article 104 charge.

By comparison, in United States v. Anderson,129 a Washington National Guard soldier was convicted under Article 104.130 The main difference between the cases was that the soldier in Anderson believed he was in direct communication with an extremist Muslim.

125. Kevin Jon Heller, Did Bradley Manning “Aid the Enemy”? Did the New York Times?, OPINIO JURIS (October 10, 2014, 12:27 PM), http://opiniojuris.org/ 2011/03/02/did-bradley-manning-aid-the-enemy-did-the-new-york-times/.

126. Andy Greenberg, As Bradley Manning’s Trial Begins, Attorneys Spar over His ‘Arrogance’ Versus ‘Good Intentions’, FORBES (June 3, 2013, 1:20 PM), http://www.forbes.com/sites/andygreenberg/2013/06/03/as-bradley-mannings-trialbegins-lawyers-spar-over-his-arrogance-versus-good-intentions/.

127. Id. 128. Kevin Gosztola, Significance of Military Judge’s Decision to Not Acquit Bradley Manning of ‘Aiding the Enemy’, DISSENTER (July 18, 2013, 3:34 PM), http://dissenter.firedoglake.com/2013/07/18/significance-of-military-judgesdecision-to-not-acquit-bradley-manning-of-aiding-the-enemy/.

129. 68 M.J. 378, 381 (C.A.A.F. 2010).

130. Id. at 381.

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He even went so far as to begin providing the extremist with detailed intelligence pertaining to troop numbers, location, training, and movements.131 This communication culminated in January 2004, when the soldier attempted to make plans with the extremist in order to discuss “actions against U.S. interests within the United States.”132 Another important consideration is whether the enemy ever actually received Manning’s communications. Physical receipt is not a necessary element for a conviction under Article 104.133 In fact, “[t]he impassable ‘line’ between belligerents is not geographic.”134 The traditional notions of passing information behind or across enemy lines are no longer necessary or applicable to the modern battlefield. It is now possible to provide the enemy with intelligence through indirect means, such as posting on online message boards (as was the case in Anderson) or publishing through traditional news sources. The key consideration of whether information was passed to an enemy revolves around “the existence of a state of war” and is not subject to traditional forms of measurement.135 The next hurdle the prosecution faced was whether the enemy was actually aided by Manning’s actions. Article 104 “specifically pertains to hostile personnel who may not be considered lawful combatants or who typically do not follow the law of war, such as alQaeda personnel and terrorist facilitators.”136 Therefore, it was not necessary for the government to prove that Manning’s actions directly aided a nation-state. The prosecution instead argued that Manning’s unauthorized leak of classified material aided enemies of the United States by providing them with direct access to that information on the internet. Although the information was not directly leaked to enemies of the United States, it was directly accessible to them.

But Manning’s defense attorneys argued that the Article 104 charge should be dismissed because Manning never had “actual knowledge” that the information he leaked would be seen or accessed

131. Id. 132. Id. 133. 10 U.S.C.A. § 904 (Westlaw 2014).

134. United States v. Dickenson, 20 C.M.R. 154, 166 (C.M.A. 1955).

135. Id. at 167.

136. Michael J. Lebowitz, A Question of Allegiance: Choosing Between Dueling Versions of “Aiding the Enemy” During War Crimes Prosecution, 67 A.F. L. REV. 131, 135–36 (2011).

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by an enemy of the United States. The defense relied on the court’s own instructions: “Knowingly” requires actual knowledge by the accused that by giving the intelligence to the 3rd party or intermediary or in some other indirect way, that he was actually giving intelligence to the enemy through this indirect means. This offense requires that the accused had a general evil intent in that the accused had to know he was dealing directly or indirectly, with an enemy of the United States. “Knowingly” means to act voluntarily or deliberately. A person cannot violate Article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy.137 The Manual for Courts-Martial states, “Actual knowledge is required, but may be proved by circumstantial evidence.”138 The government attempted to establish this nexus of knowledge by presenting evidence of the extensive training that Manning received139 as an intelligence analyst.140 Morrow again argued that Manning’s “training warned him repeatedly of the enemy’s use of the Internet writ large, and his research warned him of the enemy’s use of WikiLeaks. . . . Manning knew the dangers of unauthorized disclosure to an organization like WikiLeaks and he ignored those dangers.”141 The prosecution attempted to show that the leaked information in question had actually been accessed by enemies of the United States.

The prosecution presented evidence showing that during the May

137. United States v. Manning, No. 9504 (U.S. Army 1st Jud. Cir. July 18, 2013) (Ruling on Defense Motion for Finding of Not Guilty), available at http://cryptome.org/2013/07/lind-13-0718.pdf.

138. MANUAL FOR COURTS-MARTIAL UNITED STATES pt. IV, para 28.c(4)(b) (2012), available at http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf; accord United States v. Jones, 27 C.M.R. 196, 202–03 (C.M.A. 1959) (discussing how circumstantial evidence has been applied by military courts).

139. Ed Pilkington, Bradley Manning Given Unfettered Access to Closed Databases, Court Hears, THE GUARDIAN (June 5, 2013), http://www.theguardian .com/world/2013/jun/05/bradley-manning-database-access-trial.

140. United States v. Manning, No. 9504 at 2–3 (U.S. Army 1st Jud. Cir. July 18, 2013) (Ruling on Defense Motion for Finding of Not Guilty), available at http://cryptome.org/2013/07/lind-13-0718.pdf.

141. Greenberg, supra note 126 (quoting Army prosecutor Joe Morrow).

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2011 raid on a compound in Abbottabad, Pakistan, which resulted in the death of Osama Bin Laden,142 Navy Seals recovered computer files showing that the al-Qaeda leader had retrieved material from the WikiLeaks website.143 Furthermore, the prosecution pointed to Manning’s admission that the information was potentially harmful to the United States, had it been sold directly to a foreign government.144 “WikiLeaks was merely the platform which PFC Manning used to ensure all the information was available to the world, including the enemies of the United States.”145 To summarize its argument, the prosecution presented a logical map to show that Manning did possess a general evil intent. They argued that he wanted “the whole world, including al-Qaida . . . to see everything he compromised, and he knew they would. That . . . is the general evil intent, and that is aiding the enemy by giving intelligence.”146 The defense countered that although Manning did receive standard training pertaining to the dangers of posting information on social-networking sites such as Facebook, Manning was never instructed that WikiLeaks was used by enemies of the United States.

Instead, his attorney tried to paint Manning as being naïve but ultimately having “good intentions.”147 In a motion for a directed verdict, the defense admitted, “At most, the Government has introduced evidence which might establish that PFC Manning ‘inadvertently, accidently, or negligently’ gave

142. See generally The Killing of Osama Bin Laden, CBS NEWS, http://www.cbsnews.com/feature/the-killing-of-osama-bin-laden/ (last visited Mar. 11, 2014).

143. Ed Pilkington, Bradley Manning Trial ‘Dangerous’ for Civil Liberties – Experts, THE GUARDIAN (June 2, 2013), http://www.theguardian.com/world/ 2013/jun/03/bradley-manning-wikileaks-trial-aiding-enemy? (discussing the prosecution’s plan to call one of the 22 U.S. Navy SEALs who participated in the raid that resulted in the killing of Osama Bin Laden to provide classified testimony that would include the recovery of three digital media items that contained material taken from the WikiLeaks website).

144. Unofficial Transcript of Record, Vol. 19 at 16–17, United States v.

Manning, No. 9504 (U.S. Army 1st Jud. Cir. July 25, 2013), available at http://presfreedomfoundation.org/sites/default/files/07-25-13-PM-session.pdf.

145. Jill Reilly, WikiLeaks Whistleblower Bradley Manning, MAIL ONLINE (July 26, 2013), http://www.dailymail.co.uk/news/article-2378724/Wikileaks-whistle blower-Bradley-Manning-traitor-say-trial-prosecutors-closing-arguments.html.

146. Unofficial Transcript of Record, Vol. 22 at 52, United States v. Manning, No. 9504 (U.S. Army 1st Jud. Cir. July 26, 2013), available at http:// presfreedomfoundation.org/sites/default/files/07-26-13-PM-session.pdf.

147. Greenberg, supra note 126.

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intelligence to the enemy.”148 But the motion went on to state that Article 104 “does require a general evil intent in order to protect the innocent who may commit some act in aiding the enemy inadvertently, accidently, negligently.”149 But the intent issue requires a much deeper analysis. The element of intent is not presented within the language of Article 104. Instead of strictly applying the statutory language, Judge Lind applied a standard of intent that developed from case law.

Professor Kevin Heller points out that “intent is mentioned in the elements of Article 104 only concerning an attempt to aid the enemy under 104(1).”150 Here, the government was not trying to prove that Manning attempted to aid the enemy under 104(1),151 but that he did actually aid the enemy under 104(2)152 when he leaked classified documents to WikiLeaks. It appears that attempting to aid the enemy requires a specific intent, but the actual act of aiding the enemy requires something less. It was here that the government placed the crux of its efforts in seeking a conviction under Article 104.

In Martin v. Young,153 the court wrestled with whether Article 104 was a general-intent crime. “Looking to the specification itself the court found Martin charged with giving aid to the enemy ‘wrongfully, unlawfully, and knowingly.’ This, the court held, imports ‘criminality’ and it was unnecessary to determine whether or not Article 104 denounced a general intent offense.”154 Later, in United States v. Batchelor,155 the court concluded that only general intent was required to convict under Article 104. 156 Ultimately, Judge Lind rejected the government’s argument and found Manning not guilty of the aiding-the-enemy charge.157 Judge Lind declined to issue special findings pertaining to the charges for

148. Defense Motion for Directed Verdict at 3–4, United States v. Manning, No. 9504 (U.S. Army 1st Jud. Cir. July 4, 2013), available at http://s3.documentcloud. org/documents/j725118/ae-594-defense-motion-for-directed-verdict.pdf.

149. Id. (quoting United States v. Olsen, 20 C.M.R. 461, 464 (A.B.R. 1995)).

150. Heller, supra note 125.

151. 10 U.S.C.A. § 904 (Westlaw 2014).

152. Id. 153. 134 F. Supp. 204, 208 (N.D. Cal. 1955).

154. Jabez W. Loane, IV, Treason and Aiding the Enemy, 30 MIL. L. REV. 43, 77 (1965) (summarizing the decisions in both Martin and Batchelor).

155. 22 C.M.R. 144 (C.M.A. 1956).

156. Id. at 147.

157. See Savage, supra note 38.

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which Manning was found not guilty.158 But it is clear that the government was unable to convince the judge that Manning possessed an evil intent by leaking the classified documents.159 IV.

ANALYSIS

The prosecution correctly charged Manning with “aiding the enemy.” And even if he had been convicted, this would not have served as a basis to charge civilian-run news organizations with aiding the enemy for publishing intelligence leaks. Article 104 only provides for jurisdiction over civilian actors when they are in the field. Therefore, it can only be applied to military contractors and, in very limited circumstances, potentially to embedded journalists.

Convicting an intelligence leaker under the UCMJ is not a threat to the ability of a free press to continue to operate. This allows the government to take a strong stance in punishing leakers, with the goal of preventing future leaks, without jeopardizing First Amendment rights.

There are two important takeaways in how Article 104 can be applied to news publishers. These publishers cannot be charged under Article 104 either for publishing confidential information leaked directly to them or for publishing confidential information that was previously leaked and later accessed for purposes of publishing. For example, if Manning had leaked the intelligence documents directly to the New York Times, the publisher would not fall under UCMJ jurisdiction and therefore would not be subject to the same prosecution as Manning. This is a critical distinction to make because it alleviates the main concerns of the free-speech advocates who cried wolf when it was announced that Manning faced an Article 104 charge. And in the second scenario (which in fact matches reality), the New York Times cannot be charged with aiding the enemy for publishing material that it obtained when it accessed the WikiLeaks website. The right to publish this material is well within its First Amendment rights and outside the scope of UCMJ jurisdiction. Even the United States Army has articulated the same position: [The UCMJ] would be held to authorize the trial of civilians by military tribunals only when the offense had been committed in territory under martial law or

158. United States v. Manning, No. 9504 at 1 (U.S. Army 1st Jud. Cir. Aug. 15, 2013).

159. Unofficial Transcript of Record at 8–9, Vol. 19, supra note 144, at 17–19.

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military government, or within the zone of military operations, or within areas invaded by the United States, or within or in the vicinity of a military installation, or in a place otherwise subject to military jurisdiction. Cases occurring in the United States outside military jurisdiction are triable by the civil courts under the espionage laws.160 The UCMJ’s jurisdiction simply does not allow for general military or government oversight of the nation’s press. This would be contrary to the original intent of the founding fathers.161 The military can only impose limitations on the press in situations where embedded journalists are serving with units in the field during either a time of war or a contingency operation.162 Even in those situations, the restrictions that can be placed by commanders over journalists are very limited. These limited restrictions mainly exist to prevent journalists from publishing troop-sensitive information, such as unit size and location, or otherwise compromising operational security or national security. Overall, the partnership between embedded journalists and the military in Operation Iraqi Freedom was “a resounding success for both the military and the American people.”163 The language of Article 104 simply does not lend itself to a liberal interpretation. Eugene Fidell, a military law expert and lecturer at Yale Law School, said, “On paper, the statute applies to any person. But in fact the Supreme Court would not tolerate a court martial of a civilian for aiding the enemy.”164 Any jurisdiction over civilians that section 802(a)(10) affords must be narrowly construed.

160. U.S. DEP’T OF THE ARMY, FM No. 27-10, THE DEPARTMENT OF THE ARMY FIELD MANUAL: THE LAW OF LAND WARFARE, app. A-21 at para. 79(b) (1956).

161. For a background discussion on the importance of civilian oversight over the military, see generally THE FEDERALIST NO. 8 (Alexander Hamilton), NOS. 47, 48, 51 (James Madison).

162. 10 U.S.C.A. § 802(a)(10) (Westlaw 2014).

163. Glenn T. Starnes, Leveraging the Media: The Embedded Media Program in Operation Iraqi Freedom, in PERSPECTIVES ON EMBEDDED MEDIA: SELECTED PAPERS FROM THE U.S. ARMY WAR COLLEGE 85, 101 (Michael Pasquarett et al. eds., 2004), available at http://www.au.af.mil/au/awc/awcgate/army-usawc/ embedded_media_papers.pdf.

164. Eyder Peralta, What the Manning Verdict Says About Edward Snowden’s Future, NPR (July 30, 2013, 5:28 PM), http://www.npr.org/blogs/thetwoway/2013/07/30/207042272/what-the-manning-verdict-says-about-edwardsnowdens-future.

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Courts determine “whether an armed force is ‘in the field’ based on the activity in which it may be engaged at any particular time, not by the locality where it is found.”165 Therefore, when determining if a civilian is in the field—and thus subject to UCMJ jurisdiction—a court must consider the activity that the civilian is engaged in and not just the civilian’s physical location in a war zone.

The possibility remains open that UCMJ jurisdiction could be extended to embedded journalists traveling with, and reporting on, military units. But the clearer example would be civilian contracting firms who are used to augment the military’s war-fighting capabilities in a war zone. Civilian contractors essentially assume the role of war fighters within a war zone, making the jurisdictional connection far easier to establish. By assuming this role, civilian contractors should be held to the same high standard when it comes to protecting national secrets and classified information.166 The Supreme Court of the United States has gone even further in limiting the UCMJ’s jurisdictional reach over civilians. In Reid v.

Covert,167 the Court initially expressed doubt over whether courtmartials could ever be used over civilians; however, the Court did acknowledge that a few federal courts have allowed it. The Reid Court noted that exigent circumstances existed in all of these cases, particularly the inability to transfer the civilian over to friendly civilian authorities for prosecution.168 While the military may be permitted, in limited circumstances, to try civilians when a civilian court simply cannot be accessed, there must be a reason for conducting the prosecution in an expedited time period.

There is also a concern that military jurisdiction over civilians may violate international law. The United Nations has taken a very unfavorable view of military jurisdiction being extended to

165. United States v. Burney, 21 C.M.R. 98, 109-110 (C.M.A. 1956) (citing Hines v. Mikell, 259 F. 28, 34 (4th Cir. 1919)).

166. See generally Josh Gerstein, Feds: Leaker’s Plea Spares Secrets, POLITICO (Mar. 24, 2014, 6:03 PM), http://www.politico.com/blogs/under-theradar/2014/03/feds-leakers-plea-spares-secrets-185638.html?hp=l8 (discussing the ongoing case of a civilian contractor who disclosed a “highly-classified report on North Korea to Fox News,” which drew media coverage in 2013 when it was suggested that the Fox News correspondent was “potentially criminally culpable in the leak by aiding, abetting or acting as a co-conspirator”).

167. 354 U.S. 1, 20 (1957).

168. Id. (citing Hines, 259 F. at 33).

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civilians.169 And it is disputed whether the International Covenant on Civil and Political Rights (ICCPR),170 to which the United States is a party, allows for military jurisdiction over civilians. The United Nations Human Rights Committee has decided that the military trial of a civilian is presumed to violate the ICCPR and that this is a heavy burden to overcome.171 Not only has the Supreme Court of the United States taken an unfavorable view of military jurisdiction over civilians, but international law also makes it extremely difficult to establish this jurisdiction.

In Manning’s case, the question that naturally arises is whether the New York Times could be prosecuted for publishing information taken from the WikiLeaks site.172 Harvard University Professor Yochai Benkler has expressed his concern that if Manning had been convicted under Article 104, then it would not have mattered whether al-Qaeda or the New York Times had accessed the classified information.173 Professor Benkler testified in the case: [I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy.174

169. See U.N. Human Rights Comm., General Comment 13: Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art. 14): 13/04/84 (Apr. 13, 1984).

170. See generally International Covenant on Civil and Political Rights, art. 14, Dec. 19, 1966, 999 U.N.T.S. 171.

171. See Sangeeta Shah, The Human Rights Committee and Military Trials of Civilians: Madani v Algeria, 8 HUM. RTS. L. REV. 139, 142–43 (2008) (Eng.) (discussing the four-step test that should be used to justify military trials for civilians).

172. A Note to Readers: The Decision to Publish Diplomatic Documents, N.Y. TIMES, (Nov. 28, 2010), http://www.nytimes.com/2010/11/29/world/29editornote. html?_r=1& (“For the Times to ignore this material would be to deny its own readers the careful reporting and thoughtful analysis they expect when this kind of information becomes public.”).

173. Yochai Benkler, The Dangerous Logic of the Bradley Manning Case, NEW REPUBLIC (Mar. 1, 2013), http://www.newrepublic.com/article/112554.

174. Unofficial Transcript of Record at 8–9, United States v. Manning, No. 9504 (U.S. Army 1st Jud. Cir. July 10, 2013), available at

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Others even believed that military bloggers could be charged with aiding the enemy.175 The Supreme Court of the United States has always used a carefully construed strict-scrutiny test when balancing nationalsecurity threats against the freedom of the press.176 And as noted, the Espionage Act, rather than the UCMJ, is the most frequent method used to prosecute leakers. Despite this, First Amendment advocates’ most serious fear has been that Manning’s court-martial would serve as a springboard for these future prosecutions where the government could choose to wield Article 104 against private media entities.

Professor Heller dismisses these fears outright: “To be sure, the UCMJ only applies to soldiers, so WikiLeaks or the New York Times could not actually be charged under Article 104.”177 Therefore, Manning’s supporters’ greatest fear is unfounded. The UCMJ was never intended to be applied to civilian news organizations, and none of the limited exceptions that allow for jurisdiction over civilians could apply.

Following Manning’s acquittal on the Article 104 charge, the analysis must shift to what the acquittal means for future leakers and those who choose to publish their leaks. Mary-Rose Papandrea, a professor of law at Boston College, has stated, “It’s not like Bradley Manning is getting off scot-free. All it means is that he was not found guilty of what essentially amounts to treason.”178 She believes that individuals such as Edward Snowden will still face stiff prosecutions.

But civil libertarians’ greatest fear is the impact that Manning’s court-martial would have on civilian news organizations. This was, and continues to be, a misplaced fear based on a false understanding of the UCMJ’s jurisdictional reach.

V.

CONCLUSION

At the end of the day, Bradley Manning is not a hero. John Malcolm, of the Heritage Foundation, may have summed up the damage that Manning is responsible for best:

http://pressfreedomfoundation.org/sites/default/files/REVISED-July-10afternoon.pdf.

175. See Ben Wizner, The Government’s Overreach on Bradley Manning, ACLU (Apr. 26, 2012), https://www.aclu.org/blog/free-speech-national-security/ governments-overreach-bradley-manning.

176. See discussion supra Part III.A. 177. Heller, supra note 125.

178. Peralta, supra note 164.

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Manning disclosed more than 700,000 classified military and diplomatic documents to WikiLeaks, an organization well known for its hostility to the United States, knowing that they would post the information on the Internet. That disclosure provided the brutal enemy we were fighting in Iraq and Afghanistan with crucial strategic and tactical information, such as almost half a million after-action battlefield reports.

Those reports could help them counter our military operations and help them kill American troops.179 The full extent of the damage that Manning did may never be realized. He was “the most egregious spy in U.S. history, if one were to go by volume alone.”180 Manning’s leaks severely impacted the State Department and its relations with foreign governments.181 Nicholas Burns, a professor at Harvard’s Kennedy School of Government and former diplomat, believes that the leak damaged the government’s credibility in conducting diplomacy: “I strongly believe that the WikiLeaks case has been a heavy blow to the conduct of successful diplomacy, and thus injurious to U.S. national security.”182 Manning’s intentional decision to leak diplomatic cables resulted in harm to the very public that Manning argued he was protecting. But like the true extent of the harm his actions caused, his true intentions may never be fully known.

One of Manning’s former supervisors, Jihrleah Showman, recalled a story that captures Manning’s state of mind concerning the country he served in uniform and the public he claimed to be serving by leaking the classified material. The story occurred prior to Manning’s deployment to Iraq. Showman pointed to the flag pinned to the right shoulder of her uniform, the same uniform that Manning wore, and asked Manning what the flag meant to him. “He said the

179. John G. Malcolm & Hans von Spakovsky, Bradley Manning: A Disappointing Sentence, THE DAILY SIGNAL (Aug. 21, 2013), http://dailysignal. com/2013/08/21/bradley-manning-a-disappointing-sentence/#.

180. Steven Bucci, Manning Verdict in WikiLeaks Case Sends Message to Lawbreakers, THE DAILY SIGNAL (July 30, 2013), http://dailysignal.com/ 2013/07/30/manning-verdict-in-wikileaks-case-sends-message-to-lawbreakers/.

181. James Kitfield, WikiLeaks’ Collateral Damage, NAT’L J. (Dec. 16, 2011), http://www.nationaljournal.com/nationalsecurity/wikileaks-collateral-damage20111216.

182. Peralta, supra note 164 (quoting Nicholas Burns).

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flag meant nothing to him and he did not consider himself to have allegiance to this country or any people.”183 As Manning’s supporters still protest for his release,184 the question must be asked: How can someone deny allegiance to his country and still claim that he was serving his country by leaking classified secrets and making the secrets accessible to his nation’s enemies? More importantly, what further steps need to be taken to prevent the next Manning?185 Manning’s prosecution is not a story about the government going too far, but a story where it simply fell short. Considering everything, 35 years hardly seems long enough.

The right of citizens to speak freely and the ongoing presence of a free press will continue to promote a free and open society. The best way to ensure these rights for future generations is to remain ever watchful against all threats, foreign and domestic. Perhaps the greater challenge lies with the continued need to ensure that the federal

183. Ed Pilkington, Bradley Manning: Whistleblower or Traitor, THE GUARDIAN (Jul. 30, 2013, 12:30 PM), http://www.theguardian.com/world/2013/jul/30/bradleymanning-whistleblower-traitor-wikileaks.

184. Bradley Manning Supporters Protest for His Release, CBS NEWS (Jun. 2, 2013, 7:52 AM), http://www.cbsnews.com/news/bradley-manning-supportersprotest-for-his-release/.

185. See, e.g., Christian Davenport, Federal Agencies Embrace New Technology and Strategies to Find the Enemy Within, WASH. POST, Mar. 7, 2014, http://www.washingtonpost.com/business/economy/federal-agencies-embrace-newtechnology-and-strategies-to-find-the-enemy-within/2014/03/07/22ce335e-9d8711e3-9ba6-800d1192d08b_story.html (discussing new technologies that the government is considering using in order to identify potential insider leakers by tracking classified documents). But see John A. Irvin & David L. Charney, Stopping the Next Snowden, POLITICO (Mar. 25, 2014), http://www.politico.com/ magazine/story/2014/03/stopping-next-edward-snowden-105004.html#.UzlvIdOXIU; Gordon Schnell & Marlene Koury, Preventing the Next Bradley Manning and Edward Snowden, ROLL CALL (Jun. 27, 2013, 1:53 PM), http://www.rollcall. com/news/preventing_the_next_bradley_manning_and_edward_snowden_commen tary-225997-1.html So if the government really wants to prevent the next Manning and Snowden, it should spend less time worrying about setting an example with them. Instead, it should devote its energy to providing these kinds of whistle-blowers with the same incentives and protections it affords everyone else. This means providing a clear, safe and meaningful channel through which they can take their concerns without risk of being ignored or punished in the process. And it means educating the intelligence community that their concerns will be taken seriously.

Id.

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government, under the auspice of national security, does not use its power to limit individual liberties guaranteed by the United States Constitution. The government’s interest created under the broad scope of national security does not necessitate the use of unrestrained governmental power. Although the government was within its jurisdictional and duty-bound prerogative to prosecute Manning, future prosecutions will most assuredly serve to further test this delicate constitutional balancing act.

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