Depositions for Criminal Cases

Depositions are most often used in civil cases.  But that doesn't have to be the case.  Depositions can be quite effective in criminal cases as well, especially cases that have out-of-town witnesses, or others that may later become unavailable for trial.  The latest issue of The Champion, the newsletter of the National Association of Criminal Defense Lawyers (NACDL), has a good article about Taking an Effective Deposition in a Criminal Case.

Chapter 39 of the Texas Code of Criminal Procedure governs depositions for criminal cases in Texas.  That is the place to start if you think a deposition might be appropriate for your case.

*A note from past experience: If you are planning to take a deposition of a foreign national in another country, please be sure to research the host nation's laws on depositions.  I almost messed that one up with a deposition I had to take in Okinawa.
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The Penalty for Tardiness

A couple of weeks ago, one of our guest blawggers (a prosecutor) posted about his disdain for tardy defense attorneys.  Now Jamison Koehler, a blawgger friend and criminal defense attorney in Washington D.C. shares his recent experience about a tardy prosecutor.

It seems to me, the common theme here is that as professionals and officers of the court, none of the parties should be late.  As Jamison points out, if it happens in Washington DC, you (or your client) may pay the consequences.
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"There They Are Right There!" - A Defective Terry Stop

The propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I've written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant's warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said "There they are right there."  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have "reasonable suspicion" to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said "There they are."

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court's initial ruling.  The standard of review (abuse of discretion - outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.
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A Harmful “Synergistic Effect” Instruction

You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone.

That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction.  It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications).  The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs.  See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004).

Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas).  In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test.  However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle.  Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury.  In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted.

On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone.  The 5th COA further held that the erred was harmful.  On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless).

The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol.  The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains:

should follow the guidelines of Almanza, assaying the degree of harm ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’

The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory.

Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information.  The theory must be supported by the evidence, rather than a mere hunch.

Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case.  She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette.

Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis.

Judge Keasler also dissent, but without a written opinion.
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An Ambiguous Request is No Request at All

In a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect's constitutional right to have an attorney present when the suspect voluntarily continued the conversation with the officers.

U.S. v. Carillo - While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy.  After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present.  The officers stopped talking to him and left.  The next day the defendant told jailers that he wished to speak to the officers from the day before.  The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant's right to an attorney.  The defendant made three comments during this time.  He told the officers, “I wish I had a lawyer right here," "I wanted to see if we could push this thing to where I could get my lawyer," and "I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it." After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now.  The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney.  Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction.

On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966).

The 5th Circuit recognized that the defendant's three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel.  However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present.  The court held that the defendant's comments to the officers were ambiguous at best.  They expressed the defendant's preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel.  The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview.  The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do.
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Single Act, Single Offense - Indecency with a Child by Exposure

If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not kafetaria multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey's majority opinion in Harris v. State HERE.

Presiding Judge Keller dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”
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A Prosecutor’s Comment on a Defendant’s Failure to Testify

If a criminal defendant takes the stand during trial on the merits and denies culpability, but then, after being convicted, chooses not to testify during the punishment phase of the trial, may the prosecutor comment during closing that the defendant has “not taken responsibility for the crime?”

The 1st District Court of Appeals (Houston) says NO. But what about the Texas Court of Criminal Appeals?

In Randolph v. State, No. PD-0404-10 (Tex. Crim. App. 2011), appellant testified during guilt/innocence he was never at the scene of the crime and offered the jury an alibi. After the jury convicted him, he did not take the stand during the punishment phase of the trial. The prosecutor argued during close (in the punishment phase):

You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime.

On appeal, appellant relied upon Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) to argue that the prosecutor improperly commented on his failure to testify during the punishment phase of trial. The 1st COA agreed and held the prosecution violated the precedent set forth in Swallow. The CCA didn’t buy it, however, holding:

[A] punishment-stage remark on the defendant’s failure to accept responsibility may be fair game if the defendant, in his guilt-stage testimony, denied responsibility for his actions or for the crime.

The 1st COA held this closing argument remark was the same as the remark given by the state in Swallow, but the CCA distinguishes:

But in this case the prosecutor said nothing about remorse or lack of remorse. She spoke only of “responsibility of the crime” – responsibility that appellant explicitly denied during his testimony. This Court, in Swallow, inadvertently combined the apples of “remorse” (which is generally expressed only after accepting responsibility) with the oranges of “responsibility.”

The CCA further explained:

The prosecutor may comment on any testimony given by the defendant in the guilt stage, and, if the defendant expressly or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on that denial.

Dissenting, Judge Myers asserts:

By referring to the fact that Appellant did not take responsibility for the crime, the state pointed out that the defendant did not testify during punishment phase of his trial. The majority complicates the matter by analyzing the definitions of the words used by the prosecutor, rather than considering their obvious meaning – thus creating a horrible Hobson’s choice for the defendant, an indiscernible dilemma for the trial judge, and an appellate record that will be difficult to decipher.

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If You Don't Have Anything Nice to Say...

After the defendant was convicted in the case of State v. Lucio, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

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CCA Recognizes "Grooming" as a Legitimate Subject of Expert Testimony

Today, in Morris v. State, a 6-3 opinion authored by Presiding Judge Keller, the Texas Court of Criminal Appeals held (by taking judicial notice) that "'grooming' of children for sexual molestation is a legitimate subject of expert testimony."  The opinion, which reads like a law review article at times, goes into great detail about the state and federal courts that have long recognized "grooming" as an appropriate (and helpful) area for expert testimony. (If you don't know what "grooming" is, HERE is the Wikipedia definition.)

Judge Price's dissent is highly critical:

After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all.

Believing the trial record too bare for the Court to take judicial notice of the reliability of grooming-based testimony, Judge Price dissents.  Judges Meyers and Womack joined the dissent.

Judge Meyers also dissented, stating:

Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think [the expert in this case] was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior.

Judges Womack and Price joined the dissent.

Judge Cochran concurred in the judgment and would hold that grooming is an experiential field rather than a "soft science":

This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.” It is just “horse sense” expertise developed over many years of personal experience and observation.

While they all seem to agree that "grooming" is an appropriate area for expert testimony, the lingering question (at least for me) is - What does it take to qualify someone to be an expert witness on child grooming?  A question for a later day I suppose.
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Another Confrontation Case at the Supremes - Williams v. Illinois

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

At trial, the state called a DNA expert to testify about how it matched the accused's DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves. 

Robert Barnes of the Washington Post covered the case HERE.  I couldn't attend the hearing, so I'll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.
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Consummation Optional for Credit/Debit Card Abuse

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Debit Card Abuse if that person “presents or uses” a debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a debit card? Can someone “present” a debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for "use."

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.

The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal signifigance apart from use.
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Vigilant Border Protection

Out near El Paso, the law enforcement folks are pretty anal about boundaries.  Apparently, their “border-protection” mentality applies equally to law enforcement officers from neighboring jurisdictions.  Below is a summary from a federal quarrel between officers of El Paso and Hudspeth Counties.  While it isn't directly on point for this blog, it is tangentially related to Texas criminal law and it has a little bit of 4th amendment seizure flavor to it.

Short v. West, Fifth Circuit Court of Appeals - November 2, 2011

Appellant was an officer in the El Paso Police Department, (EPPD) assigned to a narcotics task force for the 34th Judicial District. The 34th Judicial District includes both El Paso and Hudspeth counties. While conducting a task force related traffic stop in Hudspeth County, appellant encountered a Hudspeth County Sheriff Department (HCSD) deputy who asked him what he was doing there.  Appellant identified himself to the satisfaction of the deputy and told her that EPPD task force officers were working in Hudspeth County.  The deputy contacted her dispatcher who in turn called Hudspeth County Sheriff West and told him that EPPD officers were performing traffic stops in Hudspeth County.  Sheriff West ordered his deputies and find out whether the EPPD officers were, in fact, law enforcement officers.  Sheriff West also ordered his deputies to round up the EPPD task force officers and escort them to his office.

A lieutenant in the HCSD located appellant’s supervisor, who produced identification showing him to be an officer with the EPPD and the task force.  Appellant’s supervisor ordered him and the other task force members to return to El Paso County.  While on the way back to El Paso County, appellant and several task force members were stopped and surrounded by HCSD deputies.  The HCSD deputies ordered appellant and the other task force members to go to a nearby HCSD substation.  They were told that they would be arrested if they failed to comply.  Appellant and the task force members went to the HCSD substation where Sheriff West complained that he had not been notified of the task activities in his county. He then told the task force officers that they were free to leave.  Appellant sued Sheriff West under 42 U.S.C. § 1983 for violating his rights under the Fourth Amendment.

The court held that Sheriff West was not entitled to qualified immunity.  First, the court found that appellant was seized for Fourth Amendment purposes. The HCSD deputies surrounded the task force officers’ vehicles preventing them from returning to El Paso County.  In addition, appellant was threatened with arrest if he did not accompany the deputies to the HCSD substation.  A reasonable person would not feel free to ignore such a show of force and go about his business.

Second, the court found that such a seizure was objectively unreasonable.  Sheriff West ordered the task force officers to be detained and brought to the HCSD substation so he could personally examine them. This was not likely to quickly confirm or dispel his suspicions as to whether or not the task force officers were legitimate law enforcement officers.  There were less intrusive ways to accomplish this.  Sheriff West could have contacted the EPPD Chief, whom he knew or he could have run the license plates on the task force officers’ vehicles. It was unreasonable to not recognize or pursue these options as alternatives to seizing Short.
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Closing the Loophole on Outcry Witnesses

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The duduk perkara with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.
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Pontifications of a Prosecutor

So much of our time in the criminal law world is spent in negotiations.  A defense attorney was in my office the other day and we were sharing small talk after we had reached a resolution on a felony he was handling.  I made some passing remark about him "wearing" me down because I had made an offer I didn't initially want to make.  He quipped back about the result not being overly favorable for his client either (a felony conviction would now find a home on his record.)  Then, he made an interesting comment.  "The best resolution after fierce negotiations is one that leaves no one happy." 

 

Huh.  Completely contrary to what I learned in law school.  I thought the goal of negotiations was to find an agreement that made everyone happy?  Maybe in the civil world, but after thinking long and hard about it, in criminal law, maybe it is the former...Maybe the goal in criminal law is simply a result that everyone can live with, but about which no one is particularly happy.

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Limits of the 4th Amendment in an iPhone Culture

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out.

U.S. v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no ekspresi response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.
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Supreme Court Strikes Down GPS Tracking Device, Raises More Questions in the Process

Much like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes asearch or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones HERE.  Okay, so it's a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here's what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven't had the time yet to fully digest the opinion, so I'll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C'Mon.  When you cite U.S. v. Jones, people are going to thing you're making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.
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