May 12, 2016

Court warns about using music as evidence

Lowering the Bar

The main issue in Washington v. DeLeon was whether the defendants were forced to make incriminating statements that were then used against them at trial, which one of those pesky amendments says isn’t allowed. But the Washington Supreme Court also took a moment to instruct lower courts about other questionable evidence.

The three defendants were accused of a drive-by shooting that wounded a member of the Sureño gang, and the State’s theory was that the shooting was gang-related....

Enter the “gang expert.” Such an expert, often a police officer, is sometimes allowed to testify about gang culture, organization, and so forth. Assuming the expert is actually an expert, there’s nothing inherently wrong with that, but a problem arises when evidence of “gang culture” overlaps with regular culture. One example is the red bandanas police found in the defendants’ car. According to the opinion, the Norteños “generally wear red” and the Sureños “generally wear blue.” Of course, other people sometimes do too. The colors aren’t irrelevant, but it isn’t much as evidence goes...

The court stated, “we are concerned by some of the questionable musical evidence presented by the State as evidence of gang involvement.” The lower court noted that one defendant had a song by Los Tigres del Norte on his cell phone, and interpreted that as “evidence of gang involvement.” This conclusion the high court found “troublesome”:

Los Tigres Del Norte has been one of the more prominent bands in Latin music for decades. Since forming in 1968, Los Tigres Del Norte have sold 32 million albums. They have won five Latin Grammy awards, and they have performed in front of U.S. troops serving abroad. There is no support in the record for the contention that enjoying their music is evidence of gang involvement. [We] take this opportunity to remind courts to exercise far more caution when drawing conclusions from a defendant’s musical preferences.

That seems like a solid rule. Unless the defendant was caught with a significant quantity of Justin Bieber recordings, in which case leaping to conclusions is fully justified.

1 comment:

Anonymous said...

The use of phony expert testimony is becoming more common. I am an attorney. In my state people who are people are being convicted of driving while intoxicated on the basis of testimony of so-called "drug recognition experts." These experts take a course which supposedly enables them to testify about drug intoxication. Typically what will happen is that a driver who has been sleep deprived (due to overwork or worry or mental illness) will nod out while driving and give the impression of intoxication. They are not intoxicated, just flat out exhausted. When blood tests or breath tests fail to show the presence of blood alcohol, then "drug recognition experts" are called into to testify that the person must be intoxicated on a drug. The courts rubber stamp convictions. I have seen clearly innocent people with no history of drug or alcohol abuse lose their licenses to drive based upon this type of testimony. One case was so outrageous, I went out and bought a dash cam for my car as a measure of self protection.