Judge Smith makes a variety of unremarkable -- indeed, correct -- legal and factual assertions in this morning's Ninth Circuit opinion. But there's one claim in particular that struck me as fairly surprising.
Rather than prejudice you with my own sense (or Judge Smith's), I'll set up the issue just by asking a basic question and getting your answer at the outset.
Here's the question: In your run-of-the-mill police car chase, which of the following attributes normally exist? (Warning: I'm definitely making up some of them. I just want you to pick out which attributes are the ordinary markers of a police chase, as opposed to those that aren't.)
(A) Sirens.
(B) Air surveillance.
(C) Shots fired by the police.
(D) Dogs.
(E) SWAT officers in full gear.
(F) Tactical nuclear weapons.
To assist you: Clearly, (A)'s an ordinary marker of police chase, whereas (F) is most definitely not. Pretty much every police chase -- not all of them, to be sure, but most of them -- involve officers with sirens blaring. Whereas, to my knowledge, very few police chases involve either the possession or use of nukes.
What about (B) through (E)? Which ones would you say are ordinary markers of a police chase? Choose.
Different people might say different things, but personally, I'd think that maybe (B) qualifies, but not any of the others. Maybe most -- or at least a ton -- of police chases involve supporting helicopters or aircraft. So I'll go ahead and say that "air surveillance" is an ordinary marker.
But (C) (shots fired by police)? Nope. The vast majority of police chases don't involve shots fired, IMHO. Dogs? Nah. Not really. I'm sure that some of them involve K-9 units (just like some of them involve shots fired). But that's not an ordinary attribute. SWAT officers? Nah. Again, some chases surely call out the SWAT team. But not most -- or even, I suspect, many -- of them. That's not an ordinary marker of a police chase.
So, in the end, I say (A) and (B). You?
Whereas Judge Smith says: (A), (B), (D) and (E). Which seems a fair piece aggressive -- and factually inaccurate -- to me.
What follows is the actual line from Judge Smith's opinion. Context: The government showed the jury a videotape from a police chase, ostensibly not to prove that the defendant was a bad guy, but principally to show that he possessed a particular sweatshirt -- a sweatshirt that the video showed he indeed wore during the police case, and that indeed looked awfully similar to one one worn by the robber during the robbery. (Put to one side the fact that the videotape was wholly unnecessary to prove the possession, since the defendant was surely willing to stipulate to that fact, the police officers could surely testify to it anyway, and the government in any event undoubtedly had the sweatshirt itself in its possession to actually show to the jury what defendant was wearing on the day of the chase.) Was showing the jury a video of the police chase unduly prejudicial? Judge Smith says no, claiming . . . .
"Although the video showed 'a vehicle police chase, SWAT officers in full gear, dogs, air surveillance[,] and sirens,' none of these features is particularly prejudicial, as all are ordinary markers of a police chase."
You already know my take on that front. Sirens, yes. But showing the jury that this particular chase involved SWAT officers in full gear and dogs; well, those aren't "ordinary markers of a police chase" under at least my understanding of what police chases usually entail. And I bet that's even more so for the lay jurors at issue.
Maybe it's not an abuse of discretion or the like to admit the evidence; on that, I can see why someone might come out the way Judge Smith does. But SWAT officers (in particular) and K-9 dogs as 'ordinary markers of a police chase?" I think not.
