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Saturday, December 15, 2012

Ind. Courts - Is bloodhound evidence admissible in Indiana?

No, ruled Porter County Superior Court Judge Alexa this week. Kevin Nevers reported Dec. 14th in the Chesterton Tribune:

Prosecutors will not be allowed to enter dog-tracking evidence against the accused murderer of Amanda Bach, Dustin McCowan, when his trial begins on Feb. 4.

On Thursday, Porter Superior Court Judge Alexa granted a motion filed by McCowan’s attorneys on Aug. 16, seeking the exclusion of that evidence.

Prosecutors had hoped to introduce the results of tracks made on Sept. 21-22 by retired PCSP Sgt. Charlie Douthett’s bloodhound Jury, who Douthett testified at the hearing in August had alerted to McCowan’s scent at the site near his home where Bach’s body was found; at Dean’s General Store on Ind. 130, where Bach’s abandoned vehicle was found; and along Jones Road and C.R. 650W, the main route between McCowan’s former home on C.R. 625W in Union Township and Dean’s.

Exactly how useful that evidence would have been — had Alexa allowed it — is unclear, since under cross-examination by McCowan’s attorney, Nick Barnes, Douthett acknowledged that under certain circumstances it’s not only possible for a scent to last in excess of five months but also for a bloodhound to track a person who’s traveled in a vehicle.

In any event, Alexa did not allow the dog-tracking evidence as proof of guilt. Citing well-established Indiana case law nearly a century old, Alexa ruled that “bloodhound evidence is inadmissible because it is an unreliable form of evidence.”

In that specific case, Ruse vs. State (Ind. 1917), the Indiana Supreme Court ruled as follows: “When it is considered that the use of bloodhounds, even under the most favorable conditions, is attended with some degree of uncertainty, which may readily lead to the conviction or accusation of innocent persons, and that, at best, evidence as to their conduct in following a supposed trail is properly not of a great probative value, it follows . . . that both reason and instinct condemn such evidence, and courts should be too jealous of the life and liberty of human beings to permit its reception in a criminal case as proof of guilt.”

A much more recent decision by the Indiana Supreme Court, in 1985, also upheld the Ruse vs. State ruling, Alexa noted.

ILB: Unfortunately, the ILB has not located a freely available copy of the 1917 case online. The ILB also did not find the 1985 decision referred to above. However, it did find this statement in Brafford v. State, 516 NE 2d 45 - Ind: Supreme Court 1987:
The trial judge was correct in limiting this line of questioning. It has long been held in Indiana that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence. Ruse v. State (1917), 186 Ind. 237, 115 N.E. 778.
In addition, in Hill v. State, 531 NE 2d 1382 - Ind: Supreme Court 1989, the dissent by J. DeBruler, joined by C.J. Shepard, begins:
In this case the trial court over objection permitted the prosecution to present evidence that the dog tracked appellant's scent from the laundromat. In Brafford v. State (1987), Ind., 516 N.E.2d 45, this court reiterated the longstanding prohibition against the use of this type of evidence to convict:
"It has long been held in Indiana that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence."
In Ruse v. State (1917), 186 Ind. 237, 115 N.E. 778, Judge Spencer wrote for the court regarding this type evidence:
". . both reason and instinct condemn such evidence, and courts should be too jealous of the life and liberty of human beings to permit its reception in a criminal case as proof of guilt."
It flows a fortiori from this rule of evidence that no satisfactory foundation for the admission of bloodhound evidence can be made. The rule is based upon the unobtainability of scientific and other information which can furnish a satisfactory basis or reason for admitting such evidence. A scientist who is intimately acquainted with every detail of a grandiose scientific investigation has not necessarily reached a single conclusion worthy of being regarded as reliable. The objection raised at trial, while not completely in focus, was adequate and should have been sustained.

While the majority opinion now recognizes that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence in a criminal case as proof of guilt, the majority apparently believes that wrongfully admitted evidence should simply be ignored so long as a sufficient amount of probative evidence remains to support the conviction.

The ILB also located two related 1969 New York opinions in the case of People v. Centolella. The first opinion (People v. Centolella, 61 Misc. 2d 723 - NY: County Court 1969) rules that:
The following jurisdictions favor the view that such evidence is admissible in evidence:

Alabama: Burks v. State (240 Ala. 587); Arkansas: Rolen v. State (191 Ark. 1120); Florida: Tomlinson v. State (129 Fla. 658); Georgia: Mitchell v. State (202 Ga. 247); Kansas: State v. Netherton (133 Kan. 685); Kentucky: Daugherty v. Commonwealth (293 Ky. 147); Louisiana: State v. Green (210 La. 157); Maryland: Terrell v. State (3 Md. App. 340); Massachusetts: Commonwealth v. Le Page (352 Mass. 403); Mississippi: Hinton v. State (175 Miss. 308); Missouri: State v. Fields (434 S. W. 2d 507); North Carolina: State v. Rowland (263 N. C. 353); Ohio: State v. Dickerson (77 Ohio St. 34); Oklahoma: Buck v. State (77 Okla. Crim. 17); Pennsylvania: Commonwealth v. Hoffman (52 Pa. Super. Ct. 272); South Carolina: State v. Brown (103 S. C. 437); Tennesee: Copley v. State (153 Tenn. 189); Texas: Parker v. State (46 Tex. Crim. 461); West Virginia: State v. McKinney (88 W. Va. 400).

Those jurisdictions which hold such evidence inadmissible include: Illinois: People v. Pfanschmidt (262 Ill. 411) (bloodhounds held to be unreliable); Indiana: Ruse v. State (186 Ind. 237) (such evidence too uncertain); Iowa: State v. Grba (196 Iowa 241) (such evidence weak and uncertain); Montana: State v. Storm (125 Mont. 346) (such evidence incompetent); Nebraska: Brott v. State (70 Neb. 395) (such evidence unsafe).

Minnesota declined to pass upon the question of admissibility saying that in that case, Crosby v. Moriarty (148 Minn. 201) no proper foundation had been laid for the evidence.

The second Centolella opinion (People v. Centolella, 61 Misc. 2d 726 - NY: County Court 1969)provides:
An examination of scores of cases in other jurisdictions suggests that the following minimum requirements are necessary to satisfy the preliminary proof to permit the court to allow a jury to pass upon this testimony as a circumstance tending to connect the defendants with the crime:

1. That the dog or dogs used are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination. (State v. McLeod, 196 N. C. 542; Pedigo v. Commonwealth, 103 Ky. 41; State v. Steely, 327 Mo. 16.) In this case, the prosecution has introduced the registration of Colonel of Redstone and the pedigree and these exhibits are certified copies of the records of the American Kennel Club. (Cf. State v. Harrison, 149 La. 83.)

2. That the dog or dogs possessed these qualities and have been accustomed and trained to pursue the human track. (Moore v. State, 26 Ala. App. 607; State v. McLeod, supra; Pedigo v. Commonwealth, supra; State v. Harrison, 149 La. 83.)

In this case, Trooper Suffolk detailed the training of both Colonel of Redstone and Corporal of Redstone, a blood brother on practice trails under various conditions and circumstances.

That the dog or dogs have been found by experience in actual cases to be reliable in such tracking. (State v. McLeod, supra; Pedigo v. Commonwealth, supra; State v. Steely, 327 Mo. 16; Harris v. State, 143 Miss. 102.)

But see: Villacreses v. Rivera, 485 F. Supp. 2d 239 - Dist. Court, ED New York 2007

Posted by Marcia Oddi on Saturday, December 15, 2012
Posted to Indiana Courts