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Category Archives: Constitutional law

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Cellphones Are Not Cigarette Packs, And Supreme Court Holds The Former Are Not Subject To Warrantless Search Incident To Arrest

Posted in Constitutional law

Alain Leibman writes: This space has previously addressed the difficulties inherent in applying Fourth Amendment principles designed to accommodate searches of rooms and drawers to searches of the devices of modern technology.  In April 2011, we examined whether a consent to search a dwelling could reasonably be read as a consent to rummage through a computer… Continue Reading

Witness Affidavit Submitted Years Earlier In Administrative Immigration Proceeding Cannot Be Admitted In Subsequent Criminal Trial

Posted in Constitutional law

Alain Leibman writes: Following the Supreme Court’s Confrontation Clause jurisprudence over the last ten years, since the decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), and the resulting interpretations of lower courts, has proven to be an uncertain and sometimes dizzying ride.  The Court did not initially enunciate a test to determine the admissibility of… Continue Reading

Supreme Court To Tackle Warrantless Cellphone Searches

Posted in Constitutional law

Alain Leibman writes: We posted here last summer about a recent First Circuit opinion which invalidated a warrantless, incident to arrest, search of a defendant’s cellphone.   Entitled “Setting the Stage for Supreme Court Review,” the post discussed the varying opinions of appeals courts applying a Fourth Amendment which has been adapted uneasily to new technologies, and we predicted… Continue Reading

Confrontation Clause Permits Agent To Testify As Expert On Use Of Drug Couriers Based On His “Experience And Training”

Posted in Constitutional law

Alain Leibman writes: In a number of earlier posts, we have examined the shifting and variable analyses of lower courts seeking to apply the Supreme Court’s case of Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.  In attempting to determine the admissibility of testimonial statements from out-of-court declarants who have not been subject… Continue Reading

Defendant’s Silence After Being Given Miranda Warnings Cannot Be Used To Impeach Him, But His Stated Explanation For Remaining Silent Can

Posted in Constitutional law

Alain Leibman writes: Generally, the Supreme Court held in Doyle v. Ohio, 426 U.S. 610 (1976) that a Mirandized defendant who elects to remain silent in the face of questioning cannot have that silence used against him at trial, either on the prosecution’s case in chief or via impeachment or rebuttal.  (The Court did suggest… Continue Reading

GPS Tracking Reports Not Subject To Confrontation Clause Requirements

Posted in Constitutional law

Alain Leibman writes: Recent Supreme Court jurisprudence has seemingly raised obstacles to prosecution efforts to admit at trial reports of scientific or technical tests without concurrent live witness testimony subject to cross-examination.  In this space, we have examined the evolution of that Confrontation Clause jurisprudence, as the Court has examined whether particular test results and reports… Continue Reading

Setting Stage For Supreme Court Review, First Circuit Categorically Bars Cellphone Data Searches Incident To Arrest, Contrary To Other Courts Of Appeal

Posted in Constitutional law

Alain Leibman writes: This space has previously mused about the difficulties facing courts in harmonizing Fourth Amendment principles, developed decades ago, with emerging technologies which confound their ready application today.  We have discussed courts’ contortions over computer searches, as they struggle to apply search and seizure principles enunciated for physical file cabinets and storage areas, as seen in recent decisions of… Continue Reading

Pharmacy Drug-Purchase Logs Admissible Through Police Officer Without Violating Confrontation Clause Because They Are Non-Testimonial Business Records

Posted in Constitutional law

Even though pharmacies kept logs identifying purchases of pseudoephedrine — widely used in illegal methamphetamine production — solely to comply with federal law mandating the recordation of the infomation for law enforcement purposes, those logs were held by the Fifth Circuit to be genuine business records, and so admissible at the instigation of the government without observance of Confrontation Clause safeguards.

Ninth Circuit Holds That Foreign Records Certificate Of Authentication May Be Admitted Without Violating Confrontation Clause

Posted in Constitutional law

In United States v. Anekwu, the Ninth Circuit, in a case of first impression, holds that certificates of authentication of foreign public and business records are not testimonial in nature and therefore may be admitted into evidence by means of an affidavit, and without in-person witness testimony, without violating a defendant’s rights under the U.S. Constitution’s Sixth Amendment Confrontation Clause.

Murder Victim’s Earlier Out Of Court Statement To Social Worker About Abuse At Hands Of Defendant Was Admitted Without Violating Confrontation Clause Because It Was “Non-Testimonial”

Posted in Constitutional law

A victim’s out-of-court statement is admissible as “non-testimonial” for Confrontation Clause purposes, even though it was not made hurriedly in the midst of an on-going emergency, because it was made to a civilian social worker focused on treating a child’s abuse, not in procuring evidence to prosecute the abuser.

Testimonial Business Records — Yet Another Category For Confrontation Clause Analysis?

Posted in Constitutional law

Ninth Circuit holds that government records of benefits eligibility were admissible without cross-examination under the Confrontation Clause because they were routine and “nontestimonial,” even though the records contained perjury warnings suggesting that they were intended at least in part to serve as trial evidence in any future fraud prosecution.

Second Circuit Upholds Warrantless Detention Of Apartment Dweller Even Though He Had Already Driven Off And Was One Mile Away

Posted in Constitutional law

Distending the warrantless detention doctrine of Michigan v. Summers beyond recognition or logic, the Second Circuit has upheld the stopping and handcuffing of an apartment dweller as a de minimis measure needed to protect searching officers and preserve evidence there for seizure, despite the fact that the individual had already driven a mile away from his apartment and presumably would have continued going if not stopped by police.

Supreme Court’s Shifting Confrontation Clause Analysis

Posted in Constitutional law

In a new article published in the BNA Criminal Law Reporter, the author suggests that the Supreme Court’s Confrontation Clause analysis may be reverting to an approach, seemingly abandoned several years ago, which closely aligns the Sixth Amendment’s limitations on admissible evidence with the standards employed in traditional hearsay exceptions. (Alain Leibman, Esq., the author of this entry… Continue Reading

Concurring Opinion In Bullcoming Shows Ways Around Rigid Confrontation Clause Analysis

Posted in Constitutional law

The real action in June’s Supreme Court decision reaffirming the Confrontation Clause obligation of the government to offer lab reports only through the technician who conducted the test was in the concurrence; there, Justice Sotomayor sketched out several alternative pathways for a prosecutor lacking the necessary witness to still introduce the damning test results.

Sixth Circuit Agrees With The Third, Seventh, and Tenth Circuits: A Computer Is Not A File Cabinet Under The Fourth Amendment

Posted in Constitutional law

The Sixth Circuit has joined a plurality of circuit courts which require law enforcement agents to proceed cautiously in searching through computers, due to the sheer quantity of private data housed in a computer and the potentially corrosive effect on expectations of privacy when the “plain view” doctrine is used to justify a close review of data far afield from the original object of the search.

Evidence Derived From Violation Of Attorney-Client Privilege Not Subject To Kastigar Taint Hearing Or To Suppression Under Fruit-Of-The-Poisonous Tree Doctrine

Posted in Constitutional law

A recent Sixth Circuit case exposed Enzyte, a widely-promoted male performance-enhancing product, as a fraud. The lead defendant and promoter maintained that government agents improperly acquired thousands of attorney-client communications when they imaged more than 90 computers during a search of his company’s offices, and argued that the government should be obliged to prove that its case was untainted by evidence derived from the privileged communications. The Sixth Circuit, reversing an earlier-expressed position, held that only evidence developed from the exploitation of constitutional privileges is subject to a full-blown Kastigar hearing and risks suppression under the fruit-of-the-poisonous tree analysis.

Enzyte Enhances Only The Jail Exposure Of The Charlatans Who Promoted It

Posted in Constitutional law

Over the last ten years, television viewers have been inundated with commercials starring “Smiling Bob,” whose enthusiastic mien, we learn, stems from his happy experiences with Enzyte, a male performance-enhancing product. His wife adores him, his friends envy him, and his life is good. Unfortunately, the study claimed to support the benefits of the product was a sham; the “doctors” who developed it were fictional; and the customer satisfaction reports provided to viewers were wholly fabricated. And now, Steve Warshak, its promoter, and Harriet, his mother, who worked for him, are in jail, having been convicted of mail fraud, bank fraud, and money laundering, and several interesting legal issues were addressed in their appeal.

Confrontation Clause Chaos — Admission Of Drug Ledgers Violates Clause Because They Did Not Qualify As Business Records Of The Drug Organization And Were Therefore “Testimonial” In Nature

Posted in Constitutional law

The Supreme Court’s Confrontation Clause jurisprudence has both raised the bar substantially for the government in its efforts to introduce out-of-court statements and records and precipitated general confusion in the lower courts as they seek to apply those teachings to different fact patterns. Hearsay exceptions long believed to be co-terminous with the Confrontation Clause and safe harbors for prosecutors no longer assure admission of evidence. A recent Fifth Circuit case demonstrates just how unsettled are the expectations of prosecutors used to offering evidence in old ways which are no longer permissible under new constitutional constructs.

Overcoming A Too-General Search Warrant? Government Need Only Say “See Attached Affidavit”

Posted in Constitutional law

There are several recurring instances in the practice of criminal law where the use of particular terminology in the right circumstance makes the difference between an action which is unconstitutional or improper and one which is not, e.g., effectively invoking the right to counsel under the Fifth Amendment; saving an indictment from a fatal flaw… Continue Reading

Confrontation Clause in the lower courts — inconsistency is the only constant

Posted in Constitutional law

As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court’s decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial.  Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when… Continue Reading

Seventh Circuit Does End-Run Around Sixth Amendment to Admit Drug Testing Evidence

Posted in Constitutional law

Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence — abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that  "testimonial" hearsay be kept out unless subject to cross-examination — to in-court evidence from drug-testing labs.  Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live… Continue Reading

Crawford requires that co-conspirator statements to informants be tossed

Posted in Constitutional law

Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination… Continue Reading