Casey Anthony trial: Should jurors be allowed to smell the evidence?

Shortly after the defense rested on Thursday in the Casey Anthony murder trial, Chief Judge Belvin Perry was asked to resolve a novel question – what if jurors during their deliberations want to sniff preserved air samples taken from the trunk of Ms. Anthony’s car.

A central issue in the month-long trial has been whether the foul smell that permeated Casey Anthony’s 1978 Pontiac Sunfire was the odor of rancid garbage or the stench of death.

Prosecutors say the smell is evidence that Anthony hid the decomposing body of her two-year-old daughter in the car for several days before dumping it in the woods near the family home.

Defense lawyers counter that the unpleasant odor is the result of having left a bag of garbage in the trunk for a few weeks in the hot Florida sun.

The jurors have heard conflicting testimony about the possible source of the smell.

A scientist at the Oak Ridge National Laboratory in Tennessee said the molecular composition of the stench in the car was consistent with chemicals emitted during human decomposition. But a Florida-based expert in chemical analysis of decomposition told the jury that the Oak Ridge research was still experimental and not reliable enough to be used in the criminal justice system.

A dog trained to find dead bodies signaled his handler that there might be a decomposing body in the trunk of the Sunfire. But the use of a dog’s actions as evidence in a trial is highly unusual, particularly in a capital murder case, in part because a defendant has no opportunity to cross examine the dog to make sure the canine was not mistaken, tired, or distracted.

Lastly, prosecutors invited various experts and others who have been around dead bodies to take a whiff and render an opinion. But other witnesses, called by the defense, say the smell could have come from moldering garbage.

What’s a juror to do?

Prosecutors are set to deliver their rebuttal case on Friday, with closing arguments and jury instructions expected on Saturday. Deliberations could begin as early as Saturday evening.

Thinking ahead, Assistant State Attorney Jeffrey Ashton raised the issue on Thursday of what should happen if the jury requests the opportunity to open and sniff a canned air sample taken from the trunk of Ms. Anthony’s car.

The air samples, used to perform tests at the Oak Ridge laboratory, are entered as evidence in the case.

“Do you want the jury to open the can in the jury room and smell it,” Judge Perry asked.

“If this jury says we want to smell this evidence I find no legal support for the proposition that they can’t,” Mr. Ashton said.

Earlier in the trial, Ashton invited jurors to examine – and perhaps sniff – dried pieces of the trash from the car trunk.

One concern during jury deliberations, Ashton noted, would be to make sure that if a sample was requested, that the jurors be instructed that they all must take a whiff from the can at the same time, not just a few jurors.

Defense attorney Jose Baez said prosecutors had tried to raise the same issue during jury selection. “Now here we are at the end of the trial and they want to try again,” he said.

Mr. Baez said it would be the first time a Florida jury would smell something and “become witnesses in what is the smell of human decomposition.”

In resolving the issue, Judge Perry cited a 1948 case from the Texas Criminal Court of Appeals. That court ruled in a whiskey case that any attempt to have jurors smell or taste the evidence would force them to become witnesses in the case rather than jurors.

Judge Perry noted that the issue of jurors using their own noses to tell the difference between trash or a decomposing body had been discussed during jury selection. Three or four prospective jurors said they had smelled a dead body. “I can’t remember whether one of those survived and is on this jury,” Judge Perry said. “There is a possibility that one is.”

The judge asked: “How would the defense be able to cross-examine that particular juror or discover what kind of sway that juror has on the other jurors [if that one juror smelled the can and told the others] that’s it, that’s the odor of decomposition.”

“That would deny Ms. Anthony her Sixth Amendment right to confront witnesses against her because she has absolutely no ability to confront that juror,” Perry said.

“That item of evidence [the canned air sample] will not go back to the jury,” the judge ruled. “I am well aware of [the Florida rule of criminal procedure] that says all items in evidence can go back there, but judges are not supposed to be potted plants.”

He added: “The court will exercise its discretion and not allow any smell tests by jurors.”

Ms. Anthony is charged with first-degree murder for allegedly killing her two-year-old daughter by drugging her with chloroform and then suffocating her by pressing duct tape over her mouth and nose.

Defense lawyers maintain that the daughter died accidentally in the family swimming pool and that the mother panicked and tried to cover up the death.

The trial is set to resume on Friday.