Useful fictions in Criminal Cases
We decline Marcum’s invitation to hold the detection of the odor of marijuana by police officers cannot serve as probable cause for a search unless the odor is independently confirmed by a trained dog.
With that sentence, the Indiana Court of Appeals concluded the case of Darren L. Marcum v. State of Indiana, and, in coming to this conclusion, gave at least another few years to one of the Great Fictions in Indiana criminal law.
What are the Great Fictions? Well, despite the fact that we live in a high tech, age-of-science, modern society, over in the practice of criminal law, we follow the traditions of mystical thinking, superstition, and downright fraud. Yes, we all see the amazing feats accomplished by crime scene investigators on TV, using the scientific method to trap crooks, but that is not the general fare in the real world.
Instead of science, we rely on little shortcuts that get us to the result (a conviction) with less complication. One of my favorite Great Fictions is the old “odor of alcoholic beverage about his person” claim that is legally sufficient to initiate a DUI investigation. Of course alcohol is an odorless liquid, and contributes nothing to the way a driver smells, but the little lie gets our foot in the door to a DUI conviction, so we tolerate it.
The Great Fiction in the case above is that a “trained” police officer can sniff out marijuana. It’s a basic assertion that courts have taken as true without requiring any proof (like in the decision above). Actual studies conducted on humans’ ability to sniff out marijuana do not support the assertion that an officer can be so trained. Never let the facts get in the way of what is right.
Another Great Fiction is that fingerprint evidence is infallible. The practitioners of this “science” are almost uniformly regular beat police officers, converted into “technicians,” and most will tell you that a fingerprint match is 100% - better odds than DNA analysis. But there is no science behind these claims. There are no studies to support the proposition that as more and more people enter the fingerprint databases of the world, the technique will produce reliable results. In the real world, some of the best fingerprint technicians (FBI) determined that an American attorney was present at the Spanish train bombing. The attorney was already in jail before authorities realized they had made a mistake.
Even in the court proceedings in a criminal case, Great Fictions are used to assure that the “guilty” get and stay convicted: In an appeal of a civil case, you show the court of appeals that the trial court committed error, and you can get the ruling of the trial court reversed. But in a criminal appeal, we have a Great Fiction called the “harmless error doctrine.” Under this doctrine, if mistakes were made in a criminal trial, the court of appeals can label them “harmless” and save the conviction. So not only do you have to show the errors on appeal, you have to show (hope/beg) the appeals court that the issue was not “harmless.” I say this is fiction as errors in a criminal trial are seldom truly harmless, at least from the perspective of the person who got convicted. Plus the harmless error issue has the court of appeals guessing whether the issue would have made a difference to the jury - how do you know something like that?
