DANIEL A. McNEAL

 v.

STATE OF MARYLAND

http://www.mdcourts.gov/opinions/cosa/2011/1992s09.pdf

This opinion by the Court of Special Appeals addresses several issues. The one I want to highlight is the second question presented to the court.

2. Did the trial court err in admitting extrinsic evidence of a prior inconsistent statement made by the Appellant when the Appellant admitted having made the statement and explained why he had made it?

The court explains, in detail, how the evidence is admissible for impeachment purposes under the prior inconsistent statements rule (Maryland Rule 5–613(b)). The court then explains how the evidence is not admissible because it is a collateral matter.

The important lesson from this is the court’s final word on this matter:

This contention is waived because at trial appellant’s counsel volunteered his ground for the objection and that ground had nothing to do with whether impeachment was as to a collateral matter.

(emphasis added)

I can’t remember which professor mentioned this idea, almost in passing, back in my first year of law school. In Maryland, there is no requirement to give a basis for an objection unless the judge asks for one.

Volunteering a basis could ruin your chances of an effective appeal.

I have decided to start summarizing the MD cases published by the Maryland Court of Special Appeals and Court of Appeals. Previously I tried tweeting a summation, but it’s simply too hard to make any meaningful analysis over twitter. Before now I was obviously content with meaninglessness, but no longer! Not right now, at least.

This is a case regarding waiver of the rights encapsulated in the famous Miranda warnings, specifically if  being told by an interrogating officer that this is “between you and me, bud” is a subversive statement that vitiates the defendant’s “knowing and intelligent” waiver of his rights.

For those of you who like skipping to the back of mystery novels, the court held that statement “subverted the warnings and waiver, rendering in violation of Miranda all statements the suspect thereafter made during that interrogation.”

The pertinent fact, aside from the officer’s guarantee of secrecy, is that the petitioner signed a written waiver after being correctly advised of his rights. At that point, the waiver seems pretty knowing and intelligent (insofar as the law views intelligent). Then comes the following exchange, about an hour into the interrogation:

Q. The man, where was he at? Was he still in, was he still in bed; was he

standing up? I mean, it’s important to tell me what his demeanor is? Tell me

what he’s, he’s saying, or what he’s doing, all right, so I can get a better

picture of what’s going on, what you’re going through. When the two of you

go upstairs, all right, and, is he, is he in the bedroom? Is he — -

A. (Witness nodding head yes.)

Q. — - is he standing up, or was he still in bed? Was he sleeping? Was he

awake? Chris, bud — - all right. Was he still in bed or did he get up?

A. I’m going to jail, right?

Q. We’re not talking about jail right now.

A. Just — - that’s what the whole thing is about.

Q. That ain’t what it’s about. It’s about getting to what the truth is, that’s

what it’s all about.

Now, was he still in bed, or did he get out of bed while your cousin was up

there?

A. He was still in bed.

…

Q. He was asleep?

A. Yeah, this is being recorded.

Q. This is between you and me, bud. Only me and you are here, all right?

All right?

A. I’m trying to put together fact and accept that my life is basically over.

(Emphases added.)

The majority found that the officer’s statement was enough to vitiate the petitioner’s waiver; however, the majority concluded that the officer’s statement did not render the petitioner’s statements involuntary, allowing the State to use the unlawfully obtained confession for impeachment purposes during the remanded trial.

Interestingly, Chief Judge Bell and Judge Murphy believe that the officer’s behavior did render the petitioner’s confession involuntary.

I finally got around to actually reading the decision in State of Wisconsin v. Michael Sveum instead of viewing all the typing heads. (On the blog circuit they’re all typing heads, not talking heads.)
At first glance, I felt that the court came to the difficult but correct decision — after all, we do drive in public. I was going to go my merry way when I realized that the decision still bothered me, so sat back and tried to think it through.

The State claims, and the court affirms, that there was no expectation of privacy by the defendant since he was driving in a location visible to the general public. The court relies on US v. Knotts, 460 U.S. 276 (1983):

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [one of the defendant’s accomplices] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

… [N]o … expectation of privacy extended to the visual observation of [the] automobile arriving on [the private] premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.”

Visual surveillance from public places along [the] route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police.

Emphasis added.

That’s fine, but what if he had decided he felt like having some privacy and drove to the woods to commune with nature? What if he was a deeply private person and went out late at night to a bar, expecting everyone who would recognize him to be sleeping. Shouldn’t we have the right to expect privacy, despite using public roads?

The court claims that since the information would have been available using methods that do not require a warrant, physically attaching a GPS unit to your car does not require a warrant. The court relies on US v. Garcia, 474 F.3d 994 (7th Cir. 2007):

[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Emphasis added.

Why is there no “practical difference”? When was the last time local police used satellites to track an ordinary person’s car? Would they really have been able to track Mr. Sveum’s driving activity without the physical GPS unit?

Like I started with, I see where the court is coming from, and I’m familiar with the “Bad facts = Bad law” rule. It’s just too reminiscent of 1984 for me.

UPDATE
I just read Scott Greenfield’s post about the NY Court of Appeals requiring, in a 5–4 majority, warrants for GPS tracking. Good for New York!
I commented there and Scott helped clarify my murky concerns regarding Wisconsin’s decision.

I mentioned the ABA EDDE Case Digest I received by email in my last post. Since training at work is over and I only have 3 finals left, I took some time to look over the digest.

In general, the cases cited simply reinforce the notion that attorneys must be savvy enough to know what to ask for during discovery and that if you don’t request it, you don’t get it. One thing that stuck out at me, though, is the list of types of metadata in the Sedona Principles:

“a. Substantive Metadata”

“Substantive metadata, also known as application metadata, is “created as a
function of the application software used to create the document or file“
and reflects substantive changes made by the user. Sedona Principles 2d Cmt.
12a; Md. Protocol 26. This category of metadata reflects modifications to a
document, such as prior edits or editorial comments, and includes data that
instructs the computer how to display the fonts and spacing in a document.
Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the
document it describes and remains with the document when it is moved or
copied. Id. A working group in the District of Maryland has concluded that
substantive metadata “need not be routinely produced” unless the requesting
party shows good cause. Md. Protocol 26. ”

“b. System Metadata”

” System metadata “reflects information created by the user or by the
organization’s information management system.” Sedona Principles 2d Cmt.
12a. This data may not be embedded within the file it describes, but can
usually be easily retrieved from whatever operating system is in use. See
id. Examples of system metadata include data concerning “the author, date
and time of creation, and the date a document was modified.” Md. Protocol
26. Courts have commented that most system (and substantive) metadata lacks
evidentiary value because it is not relevant. See Mich. First Credit Union
v. Cumis Ins. Soc’y, Inc., No. Civ. 05–74423, 2007 WL 4098213, at *2
(E.D.Mich. Nov. 16, 2007); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car
Auto Racing, No. Civ. 05–138, 2006 WL 5097354, at *8 (E.D.Ky. Dec. 18,
2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). System
metadata is relevant, however, if the authenticity of a document is
questioned or if establishing “who received what information and when” is
important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi
Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3
(N.D.Ill. Mar. 8, 2006). This type of metadata also makes electronic
documents more functional because it significantly improves a party’s
ability to access, search, and sort large numbers of documents efficiently.
Sedona Principles 2d Cmt. 12a.”

“c. Embedded Metadata”

“Embedded metadata consists of “text, numbers, content, data, or other
information that is directly or indirectly inputted into a [n]ative [f]ile
by a user and which is not typically visible to the user viewing the output
display” of the native file. Md. Protocol 27. Examples include spreadsheet
formulas, hidden columns, externally or internally linked files (such as
sound files), hyperlinks, references and fields, and database information.
Id. This type of metadata is often crucial to understanding an electronic
document. For instance, a complicated spreadsheet may be difficult to
comprehend without the ability to view the formulas underlying the output in
each cell. For this reason, the District of Maryland working group concluded
that embedded metadata is “generally discoverable” and “should be produced
as a matter of course.” Id. at 27–28.”

It’s a start, but I think the principles are going about this the wrong way. Some of these distinctions are artificially created for the purpose of the list. Take the new MS Word file format — the files are now xml based. That means that embedded within the file there can be substantive metadata as well as system metadata. What do you demand? You can’t expect the opposing side to parse through the code in a plain text editor and weed out the important stuff; instead they’ll claim that it’s not necessary to produce any of it.

So what can we do? We can treat metadata like we treat any other type of data or information or document that exists; don’t pretend that metadata is special.

DISCLAIMER:  When I say “we” I mean “you”. I’m only a lowly law student who had J. Grimm for Evidence.