6th Amendment Violation – Confrontation Clause

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7^th Circuit Court of Appeals

Case Name: United States of America v. Myshawn Bonds

Case No.: 18-2670

Officials: EASTERBROOK, KANNE, and SCUDDER, Circuit Judges.

Focus: 6^th Amendment Violation – Confrontation Clause

A jury convicted Myshawn Bonds of bank robbery, 18 U.S.C. §2113(a), and a judge sentenced him to sixty months’ imprisonment plus three years’ supervised release. The evidence against him included the testimony of Kira Glass, a fingerprint examiner in the FBI’s Latent Print Operations Unit. Glass concluded that Bonds’s fingerprints appeared on the demand notes used in the two robberies.

Bonds contends that the district court’s decision to exclude evidence about Mayfield’s mistaken identification and arrest violated the Confrontation Clause of the Constitution’s Sixth Amendment. United States v. Rivas, 831 F.3d 931 (7th Cir. 2016), rejected an identical contention, holding that a district court did not violate the Constitution when excluding evidence about the Mayfield situation. Bonds asks us to distinguish Rivas on the ground that Glass works in the same FBI division that mistakenly identified Mayfield, but Bonds does not contend that Glass was involved in that error. Guilt by association would be a poor reason to deny a district judge the discretion otherwise available under Fed. R. Evid. 403.

To say that an error rate is troubling is not to suggest that ACE-V is too uncertain for use in litigation. Assessment must be comparative. What are the alternatives? Grainy pictures taken by bank surveillance cameras of robbers wearing masks, or confederates who testify for the prosecution, have problems of their own. Witnesses may lie on the stand; there is no science of credibility enabling jurors to detect who is telling the truth, and some witnesses who think that they are telling the truth nonetheless may be confused or incorrect. Eyewitness identification is notoriously subject to the vagaries of memory. A judicial system that relies heavily on fallible lay testimony cannot be improved by excluding professional analysis that may well have a lower error rate—or by diverting jurors’ attention to particular errors made by other analysts years earlier. What the judicial system can do is subject the forensic evidence to cross-examination about a method’s reliability and whether the witness took appropriate steps to reduce errors. Bonds enjoyed that opportunity.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.