Category Archives: Criminal Law

Listen To The Jurors.

29 Friday Aug 2014

Posted by in Criminal Law, Jury Instructions, Jury Persuasion, Jury Selection, Murder, Trial Tips and Techniques, Voir Dire

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Listen to Jurors, Especially to Juror #13 From Pamela Smart Trial. by Dr. Ken Broda-Bahm, The Persuasive Litigator

http://tinyurl.com/k9sh7pw

There is a new documentary in current rotation on HBO and it’s one that trial lawyers and other legal junkies will want to watch. Captivated: The Trials of Pamela Smart provides a detailed look at the 1991 trial of the New Hampshire school employee who was tried and convicted for accessory to murder in a case that later become the inspiration for the movie To Die For starring Nicole Kidman. According to prosecutors, Smart seduced one of the students and then recruited him to murder her husband. What separates Captivated from other sensationalized post-trial documentaries is that it takes a very informed and critical look at the media’s influence on trials, and also includes a very unique running commentary from one of the jurors, number 13, who provides her own reactions to the case as it unfolded: real-time comments that she spoke into her own tape recorder after every trial day. The result ends up providing a remarkable view into the continuous reactions of a sitting juror. As O.J. Simpson prosecutor Marcia Clark remarked in a review in Forbes, ‘The insights provided by this articulate, intelligent juror are the most fascinating, and at the same time unsettling, part of the story.’

Fascinating, because what you’re hearing is a conscientious and thoughtful juror attempting to work through the testimony as it is presented. Unsettling, because it is clear that the media along with the force of a popular presumption of guilt also played a role in this case. Commenting on a ‘media circus’ that made her and the other jurors ‘feel like a bug in a glass jar,’ she nonetheless tries to reach a verdict free from that pressure. Whether she and the other jurors succeeded is one of the central questions posed by the documentary, and viewers are able to draw their own conclusions. As I watched it the other night, a few thoughts occurred to me that carry relevance not only for that jury trial, but for most or all jury trials.

Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

24 Sunday Aug 2014

Posted by in Admissibility, Appellate Law, Criminal Law, Evidence, Impeachment, Rule 609

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A Rare Federal Opinion that Gets, Really Gets, Rule 609, by Jeff Bellin, EvidenceProf Blog

http://tinyurl.com/lkrrmlw

Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility.  In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants’ convictions be used as impeachment.  As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended.  Apart from getting the law right, this would have an additional benefit of generating more defendant testimony.  (Defendants generally decline to testify once a judge rules that their record comes in if they do.)  I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.

My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test.  The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.

Commentators have observed that structuring the balancing in this manner creates a ‘predisposition toward exclusion.’ Wright & Gold, Federal Practice and Procedure § 6132, at 216.  ‘An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.’ Id.  § 6132, at 217.

U.S. v. Caldwell, — F.3d — (3d Cir. 2014)

Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.

Government Can Access Individual’s Gmail Account In Money Laundering Probe.

27 Sunday Jul 2014

Posted by in Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Computer Forensics, Crime Scene Investigation, Criminal Law, Cybersecurity, Discovery, E-Discovery, Emails, Evidence, Experts, Forensic Evidence, Forensic Evidence, Forensic Expert Witness, Fourth Amendment - Search & Seizure, Google, Internet, iPad, iPhones, Legal Technology, Mac, PC Computers, Privacy, Search Warrants, Tablets, Trial Tips and Techniques, U.S. District Court for the District of Columbia, U.S. District Court for the Southern District of New York

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Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

http://www.evanino.com/federal-judge-rules-gmail-account-can-accessed-investigation/

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

10 Top Law-Related TED Videos.

20 Sunday Jul 2014

Posted by in Bad Legal Writing, Computer Forensics, Computer Fraud and Abuse Act, Computer Virus, Copyright, Criminal Law, Cybersecurity, Digital Millenium Copyright Act, Discovery, Encryption, Evidence, Finance and Banking Law, Fraud, Google, Government, Identity Theft, Intellectual Property, Law Office Management, Legal Technology, Legal Writing, Legalese, Malware, Management, Patent Law, PC Computers, Plain Language, Presentations, Search Engines, Trial Tips and Techniques, Trojans, Video

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Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog

http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/

Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages.  Think of it as a massive brain trust that shares great ideas and information.

Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE

ProPublica’s Ongoing Series and Investigation Into Medicare Waste And Fraud.

12 Saturday Jul 2014

Posted by in Criminal Law, False Claims Act, Health Law, Medicare Fraud

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Fanny Pack Mixup Unravels Massive Medicare Fraud Scheme, by Charles Ornstein, ProPublica

http://www.propublica.org/article/fanny-pack-mixup-unravels-massive-medicare-fraud-scheme

This article is part of an ongoing investigation by ProPublica into Medicare fraud. This is just one of several articles currently at ProPublica about its investigation. -CCE

Two secretaries in a doctor’s office have pleaded guilty and a pharmacy owner faces charges in a scam that Medicare allowed to thrive for more than two years.

The fraud scheme began to unravel last fall, with the discovery of a misdirected stack of bogus prescriptions — and a suspicious spike in Medicare drug spending tied to a doctor in Key Biscayne, Fla.

Now it’s led to two guilty pleas, as well as an ongoing criminal case against a pharmacy owner.

Last year, ProPublica chronicled how lax oversight had led to rampant waste and fraud in Medicare’s prescription drug program, known as Part D. As part of that series, we wrote about Dr. Carmen Ortiz-Butcher, a kidney specialist whose Part D prescriptions soared from $282,000 in 2010 to $4 million the following year. The value of her prescriptions rose to nearly $5 million in 2012, the most recent year available.

But no one in Medicare bothered to ask her about the seemingly huge change in her practice, Ortiz-Butcher’s attorney said. She stumbled across a sign of trouble last September, after asking a staffer to mail a fanny pack to her brother. But instead of receiving the pack, he received a package of prescriptions purportedly signed by the doctor, lawyer Robert Mayer said last year. Ortiz-Butcher immediately alerted authorities.

Since then, investigators have uncovered a web of interrelated scams that, together, cost the federal government up to $7 million, documents show. . . .

Children as Witnesses.

06 Sunday Jul 2014

Posted by in Admissibility, Child Molestation, Child Witnesses, Criminal Law, Evidence, Judges, Sexual Assault, Trial Tips and Techniques, Witness Preparation, Witnesses

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The Child as a Witness, from Child Welfare Information Gateway

https://www.childwelfare.gov/pubs/usermanuals/courts_92/courtsk.cfm

Good, basic information. I recommend that you check out the entire website. This is only a taste of what it contains. -CCE

The U.S. Supreme Court’s Recent Cell Phone Ruling.

28 Saturday Jun 2014

Posted by in Android Phones, Appellate Law, Blackberry Phones, Cell Phones, Fourth Amendment - Search & Seizure, iPhones, Legal Technology, Search Warrants, United States Supreme Court

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The Scary Part Of The Supreme Court’s Cellphone Ruling, by Fred Barash, The Washington Post

http://tinyurl.com/oa2t6te

That Supreme Court ruling on cellphones was supposed to be reassuring. The government needs a warrant to search your phone, the court ruled.

But read Riley vs. California more closely and it’s just a little scary — particularly for those who pay little attention to what’s on their smartphones. If you don’t think your phone exposes your life-all of it-take it from the nation’s highest court.

Your phone, says the court, is your life. Cracking it open is even more revealing than rummaging through your home, which the Fourth Amendment’s protection against unreasonable searches was designed to protect. . . .

14 Saturday Jun 2014

Posted by in Criminal Law, Justice Reform

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Reducing Recidivism: States Deliver Results, Justice Center, The Council of State Governments

http://tinyurl.com/psqclq8

In Reducing Recidivism: States Deliver Results, the National Reentry Resource Center (NRRC) highlights eight states that have achieved reductions in statewide recidivism in recent years: Colorado, Connecticut, Georgia, North Carolina, Pennsylvania, Rhode Island, South Carolina, and Wisconsin. The report focuses on statewide recidivism data for adults released in 2007 and 2010 with a three-year follow-up period, offering a current snapshot of criminal justice outcomes in these states. The report also features examples of recidivism-reduction strategies and programs that the states have undertaken in this timeframe, as well as additional data on the state’s criminal justice populations through 2013. . . .

Recent Court Rule Changes For Minnesota Courts.

14 Saturday Jun 2014

Posted by in Appellate Law, Court Rules, Courts, Criminal Law, Justice Reform, Minnesota

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Recent Rule Orders, Minnesota Judicial Branch

http://www.mncourts.gov/default.aspx?page=511#recentRules

The Minnesota Courts have been busy. Below you will see rule changes that are already in effect. Others will be in effect in the near future. For those practicing in the Minnesota appellate courts, state civil and criminal courts, and juvenile courts, this is a “must read.” -CCE

 

 06-12-2014 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Juvenile Protection Procedure and the Rules of Adoption Procedure.

03-10-2014 (Effective July 1, 2014)  Court of Appeals Issues Standing Order Regarding Paper Copies of Briefs

02-28-2014 (Effective July 1, 2014) Supreme Court Issues Standing Order Regarding Paper Copies of Briefs

02-28-2014 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Civil Appellate Procedure

12-31-2013 (Effective December 31, 2013) Supreme Court Promulgates Amendments to the Minnesota Code of Judicial Conduct

12-06-2013 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Minnesota State Board of Continuing Legal Education

12-03-2013 Supreme Court Orders Amendments to General Rules Of Practice for the District Courts. Except with respect to Minn. Gen. R. Prac. 304.02 and 304.03, the amendedments are to be effective immediately. The amendments to Minn. Gen. R. Prac. 304.02 and 304.03 are to be effective on January 1, 2014.

09-18-2013 (Effective immediately) Supreme Court Promulgates Amendments to the Special Rules of Procedure Governing Proceedings Under the Minnesota Commitment and Treatment Act

08-06-2013 (Effective immediately) Supreme Court Promulgates Amendments to the Student Practice Rules

07-24-2013 (Effective immediately) Supreme Court Promulgates Amendments to the Rules Governing Civil Actions, Forms 145.1 and 145.2

06-13-2013 (Effective September 16, 2013) The Supreme Court Amends Order Promulgating Amendments to the Rules of Practice for the District Courts regarding mandatory eFiling and eService.  The effective date has been amended to September 16, 2013.

06/07/2013 (Effective September 1, 2013) Supreme Court Promulgates Amendments to the Rules of Practice for the District Courts regarding Mandatory E-Filing and E-Service

05/08/2013 (Effective July 1, 2013)  Supreme Court Adopts Amendments Authorizing Expedited Civil Litigation Track Pilot Project

03/15/2013 (Effective July 1, 2013) Supreme Court Promulgates Amendments To The Rules Of Continuing Legal Education and Rules on Lawyer Registration Creating An Emeritus Lawyer Program

03/04/2013 (Effective May 1, 2013) Supreme Court Promulgates Amendments to the Student Practice Rules

02/12/2013 (Effective July 1,2013) Supreme Court Promulgates Corrective Amendments to the Rules of Civil Procedure and General Rules of Practice Relating to the Civil Justice Reform Task Force.

02/04/2013 (Effective July 1, 2013) Supreme Court Adopts Amendments to the Rules of Civil Procedure and General Rules of Practice Relating to the Civil Justice Reform Task Force.

01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules for Admission to the Bar Regarding Uniform Bar Examination and Rule 4B

01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules for Admission to the Bar Regarding House Counsel Pro Bono

01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules of Criminal Procedure Amending Rule 23.05

10/15/2012 (Effective December 1, 2012) Supreme Court Promulgates Amendments to the Rules of Juvenile Delinquency Procedure Authorizing ECourtMN Pilot Project

 

Court Bars Woman From Facebook. First Amendment Violation?

18 Sunday May 2014

Posted by in Criminal Law, First Amendment

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Woman Barred From Ranting About Family On Facebook, by Matt Moreno, NEWSY

http://www.newsy.com/videos/0518facebook/

Hate it when people rant on Facebook? Well, one New Jersey mom has actually been banned from doing just that.

A judge has ordered one unidentified woman not to go on Facebook rants about her children or ex-husband. . . .

Justice Department’s Attempt To Reduce Sexual Assault in Prisons. Will It Work?

17 Saturday May 2014

Posted by in Criminal Law, Department of Corrections, Justice Reform, Prison Elimination Reform Act, Sexual Assault

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Sentenced to Wait: Efforts to End Prison Rape Stall Again, by Joaquin Sapien, ProPublica

http://tinyurl.com/n7oytlp

Texas prison inmates report being raped at some of the highest rates in the country, and the problem only seems to be worsening: The three most recent reports issued by the U.S. Department of Justice show stubbornly high levels of reported sexual assault.

But late last month, Texas Gov. Rick Perry wrote a letter to U.S. Attorney General Eric Holder signaling that he’d rather lose federal funds for corrections than comply with new rules under the Prison Rape Elimination Act requiring states to substantially improve detection and prevention of sexual assaults in prisons. . . .

Don’t Offer An E-Database If You Can’t Afford It.

14 Wednesday May 2014

Posted by in Appellate Law, Criminal Law, Databases, Discovery, Document Review, E-Discovery, Metadata, Preservation, Requests for Production

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Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants, Electronic Discovery Law, published by K&L Gates

http://tinyurl.com/led86em

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the ‘Database’) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. . . .

Rhode Island Supreme Court Has No Problem With Impeachment.

11 Sunday May 2014

Posted by in Assault, Criminal Law, Evidence, Impeachment, Rhode Island Supreme Court

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Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction, Editor:  Colin Miller, EvidenceProf Blog

http://bit.ly/1oEpyhi

[S]o, assume that a defendant is charged with resisting arrest, and the trial is held in 2012. Also, assume that the defendant has the following convictions: assault on a police officer (1987), a 1982 assault on a police officer (1982), and simple assault (1982). If the defendant files a motion in limine, seeking to preclude the prosecution from introducing evidence of these convictions into evidence, how should the court rule? . . . .

Big Banks, Big Business, And The DOJ.

02 Friday May 2014

Posted by in Consumer Law, Contract Law, Criminal Law, Intentional Misrepresentation, SEC, White Collar Crime

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Big Banks, Business and Butter: Highlights From Our Q&A on Corporate Impunity, by Blair Hickman, ProPublica

http://bit.ly/1fCRh1R

Reporter Jesse Eisinger offers his thoughts on the lack of white-collar prosecutions, journalism and the Green Bay Packers.

*     *     *

I don’t think enough attention has been paid to the fact that the white collar laws are inadequate, so there haven’t been many proposed remedies. One thing the DoJ should use is the ‘willful blindness’ or ‘conscious disregard’ charge. As Judge Jed Rakoff wrote recently in the New York Review of Books: Such a charge ‘is a well-established basis on which federal prosecutors have asked juries to infer intent, including in cases involving complexities, such as accounting rules, at least as esoteric as those involved in the events leading up to the financial crisis. And while some federal courts have occasionally expressed qualifications about the use of the willful blindness approach to prove intent, the Supreme Court has consistently approved it.’ . . .

Cloud App Used By Police and Public To Catch The Bad Guys.

02 Friday May 2014

Posted by in Android Phones, Apps, Cell Phones, Clouds, Criminal Law, iPhones, Law Enforcement

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New Tool Helps Police Crowdsource Evidence, by Tami Abdollah, Associated Press, posted by Forensic Magazine

http://bit.ly/1lJps89

An annual spring party in a Southern California beach town devolved into a riot last month when revelers turned violent, rocking cars, smashing windows and throwing rocks. Dozens were injured and about 50 people ended up in the hospital, including several police officers.

Today, as authorities seek help with the investigation in Isla Vista, they’re employing a new online and mobile app that designers say was created specifically for this type of situation.

‘When the public really wants to catch these bad guys as badly as we do, this is the mechanism,’ said Los Angeles Sheriff’s Cmdr. Scott Edson, who helped conceptualize the system in the aftermath of the Boston Marathon bombings. ‘They can help us by sending us pictures and video.’

The innovation, known as LEEDIR, the Large Emergency Event Digital Information Repository, pairs an app with cloud storage to help police use smartphones as tools to gather evidence. . . .

Seeking Solutions To Reduce Recidivism.

30 Wednesday Apr 2014

Posted by in Criminal Law, Justice Reform

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The Utah Association Of Counties Explores Solutions To Reduce Recidivism, by Will Engelhardt, Policy Analyst, Justice Center, The Council of State Governments

http://tinyurl.com/mhzeblr

In January 2014, the Utah Association of Counties invited national experts to lead a training event on recidivism reduction for its members. Council of State Governments Justice Center (CSG Justice Center) Director Michael Thompson and Jake Horowitz of The Pew Charitable Trusts’ Public Safety Performance Project presented on national research on and trends in recidivism reduction, tracking recidivism rates, and the role of community-based behavioral health care services in reducing recidivism. The daylong event, entitled ‘One and Done: Four Strategies to Reduce Recidivism in Utah’s Prison System,’ brought together more than 60 representatives from Utah’s county and state governments to discuss issues related to recidivism.

The event offered an opportunity for criminal justice policymakers from around the state to connect and share insights about challenges facing counties in Utah.  Policymakers also discussed potential strategies to address these challenges at the state level using the bi-partisan, data-driven justice reinvestment approach, as well as employing a targeted, county-level research-based effort. . . .

Obama’s New Clemency Initiative.

27 Sunday Apr 2014

Posted by in Clemency, Criminal Law, Department of Corrections, Justice Reform

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Three Things Obama’s New Clemency Initiative Doesn’t Do, by Kara Brandeisky, ProPublica

http://tinyurl.com/lury8bw

Today [April 23, 2014], the Department of Justice outlined expanded criteria that could allow prisoners convicted of non-violent crimes to win early release from prison. Under the new initiative, the Office of the Pardon Attorney will fast-track commutation applications from inmates who have served more than 10 years for non-violent offenses and who were well-behaved while imprisoned.

As part of the shift, the department is replacing Pardon Attorney Ronald Rodgers. Two years ago, we reported that Rodgers had failed to provide critical information to the White House in urging denial of a commutation for Clarence Aaron, a model prisoner who served nearly 20 years for a small role in a drug deal. . . .

Marijuana Legalization Webinar Slides.

26 Saturday Apr 2014

Posted by in Criminal Law, Drug Possession, Health Law, Medical Marijuana

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Webinar Slides: Marijuana Legalization – The Legal Ins and Outs, by Tim Baran, Legal Productivity Blog

http://tinyurl.com/l2d3qyx

Here’s the slide deck from today’s terrific webinar: Marijuana Legalization – The Legal Ins and Outs for Cannabis Business Clients with Marijuana Industry Attorney of the Year, Hilary Bricken.

Find out what attorneys and their marijuana business clients need to know. Topics include: general licensing process with various state agencies, local law implementation and litigation, medical versus recreational marijuana, trademark registration and protection, taxation, real estate transactions, and banking issues. . . . .

Private Prison Corporation Sixth Largest U.S. Prison System.

14 Monday Apr 2014

Posted by in Campaign Contributions, Criminal Law, Department of Corrections, Government, Lobbyists

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Backroom Deals in Arizona Enrich Private Prison at Taxpayer Expense, by Olivia Sandbothe, AFSCME

http://tinyurl.com/lksp7ym

A private prison corporation already rakes in $45 million in taxpayer dollars each year in the state of Arizona, with a contract that virtually guarantees the company fat profits no matter how it actually performs.  But that wasn’t enough for the GEO Group, as a recent flap in the Statehouse reveals.

The GEO Group operates 59 private prisons across the United States, making it the nation’s sixth-largest prison system.  Last year the group turned $115 million in profits and paid its CEO nearly $5 million. But they didn’t get there through healthy competition or better business practices. . . .

Smelling Pot From A Moving Car With Closed Windows.

13 Sunday Apr 2014

Posted by in Criminal Law, Drug Possession, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Probable Cause

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Smelling Pot From A Moving Car With Closed Windows, By CrimProf BlogEditor, CrimProf Blog

http://tinyurl.com/qxt6xyu

FourthAmendment.com links to this piece at the Washington Post, discussing the ease with which police can stop cars that they suspect might be carrying drugs. Among the most interesting aspects is the discussion of cases in which cops in moving cars with closed windows claim to smell pot in other moving cars with closed windows. . . .

Murder Charge Rejected in Mississippi Fetal Harm Case.

05 Saturday Apr 2014

Posted by in Criminal Law, Drug Possession, Life Term, Manslaughter, Mississippi Supreme Court, Murder

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Judge Throws Out Murder Charge in Mississippi Fetal Harm Case, by Nina Martin, ProPublica

http://tinyurl.com/k652sjc

The ruling means that the woman whose drug use had her facing a possible life term can at most be charged with manslaughter in the death of her stillborn daughter. . . . .

New App for Crime Scene Investigation.

27 Thursday Mar 2014

Posted by in Crime Scene Investigation, Criminal Law

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CASE – Checklist App for Scene Examination, by WillowTree Apps, Forensic Magazine

http://tinyurl.com/mzu5kp4

The first moments at a crime scene can be critical to saving lives and ensuring justice. It’s essential that first responding officers arrive on a pristine scene, which can quickly deteriorate and lose its value in helping investigators with every minute that follows. Time, weather and the movement of essential personnel, such as EMTs and scene investigators, can alter the scene and destroy evidence. Early documentation of evidence can make a difference in bringing justice to both the guilty and the innocent.

Now, thanks to the Middle Tennessee State University’s (MTSU) Forensic Institute for Research and Education, known as FIRE; instead of trying to juggle notepads, cameras and video recorders, officers can immediately document crime scenes — capturing text, photographs, video, audio, GPS, dates and times — with their smartphones. Using a $200,000 grant from the U.S. Department of Justice, MTSU partnered with WillowTree Apps, an award-winning mobile application development company headquartered in Charlottesville, Va., to create CASE, crime scene checklist app for law enforcement agencies. . . .

New Theory of Hearsay, Take 3!

22 Saturday Mar 2014

Posted by in Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception

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A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/ka5aw6p

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?

Jury Verdit in Synthetic Marijuana Case.

21 Friday Mar 2014

Posted by in Criminal Law, Drug Possession, Jury Persuasion, Trial Tips and Techniques

≈ 1 Comment

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Jury Returns Guilty Verdicts in Synthetic Marijuana Case. by Mary Drier, Tuscaloa Today, Forensic News Daily

“A year-long investigation by several law enforcement agencies and a five-day trial results in guilty verdicts against two Michigan residents from incidents involving the sale of synthetic cannabinoids.. . .”

8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by in Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

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Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger

 http://perma.cc/V3UM-C98B

[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .