In the period leading up to the Court’s decision in State v. Hull, the forensic science issues — challenges to the reliability of fingerprint and handwriting analysis; the background rumbling of the National Academy of Science’s seismic forensic science report — attracted plenty of notice, including mine. But in the end, State v. Hull makes mainly a great whooshing sound, as the Court’s opinion lets most of the air out of the case. The facts of Hull are gruesome and chilling — not necessarily the best carrot with which to entice the Court out onto the law’s ledge. Still, Hull leaves room for future Frye I challenges to fingerprint and handwriting evidence, and it exposes some interesting crevices in confrontation doctrine.
Real Life Noir
Justice Paul Anderson’s majority opinion spends 13 pages describing the facts, which have a made-for-tv feel. Jeremy Hull killed Lewis Wilczek, burned and buried Wilczek’s body and stole the dead man’s identity. Hull worked out the details of the crime in advance in a writing that came to be known as “the plan.” The defense moved before trial for a Frye-Mack hearing on the state’s fingerprint and handwriting evidence. The trial court denied the request for a prong one or Frye or general acceptance hearing; however, the evidence on prong two, the Mack or foundational reliability hearing, was capacious–the testimony took up three days. The trial court ruled against the defense on prong two, and at trial, the state’s experts identified the fingerprints and handwriting on “the plan” (and other objects) as Hull’s.
After Hull was convicted, the National Academy of Sciences issued its landmark report on forensic science. The parties in Hull agreed that the Court could take note of the report in its consideration of the case. The NAS report raised similar criticisms of forensic fingerprint analysis and document analysis as had been raised by the defense at the Mack hearing: lack of sufficient validation studies, examiner bias, scientifically unsubstantiated claims of individualization.
The evidence at trial also included testimony about certain of Wilczek’s statements. One was a statement that Wilczek made the day he went missing. He told a friend that he had plans to meet Hull, and if the friend did not hear from Wilczek by a certain time, then something had gone wrong and the friend should call 911. The second statement involved Wilczek’s report to the police, some months prior to his death, regarding a theft from his business. On cross examination by Hull’s counsel, the testifying officer conceded that the suspect Wilczek named at the time of the theft was someone other than Hull. On re-direct, the prosecutor asked the officer if Wilczek had mentioned Hull’s name as well. The officer agreed that Hull’s name had “come up.”
Hull Freezes Over
The majority concludes that dark, creepy facts trump shaky science. The Court declines to say whether the trial court blundered in denying Hull a prong one hearing because any error in admitting the forensic evidence was miniscule when measured against the mountain of other evidence damning to Hull. The part of the majority’s Hull analysis that is likely to continue reverberating is tucked away in footnote 3:
“We agree with the position taken by Justice Meyer in her concurrence that ‘lengthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack,’ but we need not decide the issue of whether the district court erred, because, as explained below, any such error was harmless.”
At the oral arguments in Hull, the state asked the Court to adopt a rule that only novel, or new, scientific techniques should be accorded a prong one Frye hearing. The Court’s answer is an unequivocal no. The critics of the ACE-V fingerprint methodology, and every method of handwriting analysis, live to fight another day.
When they pick up the fight, they will doubtless gird themselves with the language of Justice Meyer’s Hull concurrence. Justice Meyer would have reached what she calls the case’s “substantive issue”: whether the trial court erred in denying Hull a full Frye-Mack hearing. She concludes that it did. The evidence that Hull was permitted to present on prong two, writes Justice Meyer, raises “serious doubts” whether ACE-V fingerprint analysis and handwriting analysis can meet prong one’s reliability requirement. She quotes at length, and to devastating effect, from the NAS report, including that body’s lament that courts “appear to be loath to insist on [sound] research as a condition of admitting forensic science evidence in criminal cases, perhaps because to do so would likely demand more by way of validation than the disciplines can presently offer.”
After Hull, no defense lawyer worth his or her salt will fail to request a full-blown Frye-Mack hearing in any case where fingerprint or handwriting evidence is pivotal.
The first of the confrontation issues involves Wilczek’s comments to a friend about his plans to meet Hull. The controversy is readily resolved–the statement was not testimonial under Crawford. A parenthetical issue is actually more interesting. At trial, Hull objected on hearsay but not confrontation grounds to the friend’s testimony. Minnesota’s courts have not yet decided whether a hearsay objection is sufficient to preserve a confrontation clause objection on appeal. Hull’s appellate counsel apparently assumed that it was not, and that the standard of review would be plain error — the heightened standard applicable when no objection has been made at trial. Maybe, maybe not, says the Court, but since no one has raised the standard of review on appeal, we will apply plain error analysis. So, practitioners, take note: the ball is still live, but you are well advised to make separate hearsay and confrontation objections.
The second confrontation issue involves the testimony of the police officer who investigated the theft from Wilczek’s business. The State contended that Hull opened the door to the officer’s re-direct testimony by eliciting on cross that Wilczek did not suspect Hull at the time of the theft. The majority pokes holes in this this argument, pointing out that it was the prosecutor who introduced the evidence about the theft report in the first place. Moreover, says Justice Anderson, even if Hull could be said to have opened the door, the Court has not yet decided whether a defendant’s opening the door to a constitutionally inadmissible statement operates to waive his confrontation right. Once again, the Court does not actually get to the issue, since any error in admitting the testimony was insignificant in light of the overwhelming evidence against Hull.
Chief Justice Gildea, joined by Justice Dietzen, writes in concurrence to say that she would have reached this issue. She concludes that Hull opened the door to the evidence that hurt him. Justice Gildea reviews a split in the federal circuits on the question whether a defendant’s opening the door waives his confrontation protection, and declares herself on the side of the circuits which hold that it does. Otherwise, she explains, a defendant could mislead a jury by introducing only parts of an out-of-court statement and employ the confrontation clause to keep the more damaging bits away from the jury.
So that is State v. Hull, in which many interesting things percolate, and not not much gets decided (unless, of course, you are Mr. Hull). In spite of this, it is likely that we will be talking about Hull footnote 3 for some time to come.