Alain Leibman writes: We recently blogged here and here about the DOJ’s blatant and increasingly harsh use of leverage against pleading defendants to force their waiver of important rights attendant to the sentencing and appeal process. A fuller treatment of this issue, and of the recently-announced change in DOJ policy intended to partially ameliorate this unfairness,… Continue Reading
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
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
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
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
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
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
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
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.
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.
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.
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.
The Seventh Circuit joins a number of courts of appeal exploring the need to differently apply Fourth Amendment principles to searches of computers and cell phones than to conventional document storage containers.
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.
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
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.
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.
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.
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.
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.
As record-keeping has shifted from storing a handful of parchment documents in a Colonial-era footlocker to housing millions of bytes of data on sleek laptops, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with citizens’ modern expectations of privacy.
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
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
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