Category Archives: Criminal Liability

e-Evidence Insights: Mars Needs Moms; But Science Needs Humans

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"It's an inexact science."  We've heard that phrase often.  But, how often have we heard it in reference to DNA?  Usually, we hear it more in terms of how it identifies a particular suspect with astronomically-high odds, such as, 'one-in-a-million'.  In other words, it must be him because mathematically, it couldn't possibly be anyone else.

Consider the very bad luck of our suspect in today's story:

 

  • A murder was committed.
  • The suspect's DNA was found on tape used to gag the victim.
  • Based on this evidence, he was promptly arrested.

Now, factor in the very good luck of our suspect in today's story:

  • He had an alibi.
  • He was able to prove it beyond all doubt (i.e, it wasn't his mother claiming that he'd been with her the entire time – he was in a hospital).

In fact, he was nowhere near the scene at the time of the murder; nor was he ever at the scene.  Yet, he spent five months in jail before he was eventually exonerated.

This appears to be a bizarre case of transference.

Furthermore, DNA is not necessarily like snowflakes; sometimes, two samples are identical (at least within the range that law-enforcement would feel comfortable arresting and prosecuting a suspect).

The moral of this story?  We rely on science; but sometimes, science must also rely on us.

Calbar Looking at Limited Law Licenses: It’s all about Standards

MP900341927An article in the February 2013 issue of the California Bar Journal states that the Calbar Board of Trustees is examining the possibility of creating a class of "limited-practice licensed" individuals.  Among the reasons provided as the catalyst (e.g. lower cost to consumers, path to eventual Bar passage), ostensibly, the Board also believes this would circumvent instances of unauthorized practice of law (UPL).  UPL (Rule 1-300) falls outside of the Bar's jurisdiction and is normally addressed as a misdemeanor charge via a criminal complaint.

A form of certification already exists within the Bar (or at least, it used to), called "Certified Law Clerk".  I know it well because I was one when I worked at the L.A. County D.A.'s Office during law school.  From memory, some of the criteria to be certified included being a 3L and having already passed the Evidence course, among other things.  Certification allowed me to perform more duties than a standard law clerk.  Obviously, I see some benefit to the idea.

However, I also see detriment, and the first one that comes to mind is expectations.  What level of expertise will a client of this class of legal professional believe they are – or should be – receiving?  Who will guard the line between limited-practice and unlimited practice to ensure that the provider doesn't cross it?  Who is at fault if the provider doesn't meet the standards the client believes they should meet?

Is a new tort called "Limited-Malpractice" going to spring out of this plan?  Will it ultimately 'dilute the brand' of what being a lawyer means?

Considering that I'm Chair of the Law Practice Management and Technology Section Executive Committee, if this new class is ultimately created, my Excom will likely be front and center during the implementation process.

Either way, I'll say this; the Board has their work cut out for them!

Don’t Do the (Cyber)Crime if you Can’t Do the Time

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The ABA Journal Tech Report has a comprehensive examination of cyberwarfare from their May 2012 issue.  It examines the perceived attorneys' role, Constitutional limitations and international law issues.  There are contributions from a host of experts, including some very polarizing figures, like John Yoo.

Hey, you know there can be no valuable debate unless you hear out assenting and dissenting views, right?

Be warned; this is not a light read, by any means…

Four/Fifths of a Decision by the #SCOTUS

MP900403729OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means…]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned…

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

  • Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
  • Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
  • Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate – and an examination of conflicting rulings – that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password…just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed…

Fine’s ‘Old Ball & Chain’ May Result in a New Ball & Chain

By now, most of you are aware that the wife of assistant-basketball-coach Bernie Fine of Syracuse was recorded in what is the now-infamous, "I knew everything!" debacle.

MP900315546Didn't I just caution about the people closest to you?  Folks, the old world is over.  No matter the circumstances, you must always assume that you're being watched, recorded or tracked; even in the so-called privacy of your own home.  I've reached the point where I believe you must ask yourself, "Am I about to say/write something that could be construed as harmful?" before ever opening your mouth or sending a text or email.

It's impossible for me to get inside the head of a person to figure out what they were thinking – and if we delved into the moral aspects we'd never come to any resolution – but take this as another extreme example of what happens when private thoughts become public.

Think broadly.  This isn't just about one person.  The recording was made in 2002 and has apparently been in the possession of authorities for years.  It's Penn State all over again.

Heads will roll…and perhaps they should.

License to Pry

GR-RRR!Back to the future.  All-of-a-sudden, the term "1984" has become quite popular in the news, on TV and on a certain blog & Twitter feed you may be reading at the moment.  It started with the U.S. v. Jones case regarding warrantless GPS tracking.

But 'Jones' is child's play compared to what the District of Columbia is doing on a daily basis.  At least in Jones, the issue revolves around the government tracking specific vehicles for specific purposes.  In DC, they track the license plates of all of the vehicles, all of the time.  Not only that, they retain the database, sometimes for years.

I don't know whether to be in awe or appalled!  As a techno-weenie, I can't help but be fascinated by technology that can accomplish this; but that doesn't mean I lose sight of the obvious risks to privacy.  Examples?

The Good:  A crime is committed, a witness jots down a license plate and the authorities are able to input said plate into the database and locate the perpetrator.

The Bad:  A husband calls police to report his wife missing.  They input her license plate into the database, locate her vehicle in front of an apartment building – and discover she's having an affair.

The Ugly:  Talk amongst yourselves…

As has been the case so many times before, this capability may be used for good, evil, or with good intent that becomes inherently evil.

Of course, the same could be said of chocolate cake.  In moderation, it's great; but eat too much and you can make yourself sick.  The question is, who's going to be responsible for making sure we don't overindulge?

Keep Your Friends Close…Keep Your Children Closer

MP900431825As many of us already know – and some of us have learned the hard way – heavy emotion, technology and litigation don't mix.  Most people are probably on guard, if at all, when it comes to strangers.  They don't tend to think that they might be done in by someone very close to them who is either reacting emotionally, doesn't understand the consequences of their actions or simply means to do them harm.

The example I cite here is an 11-year-old boy who was angry with his mother and stepfather for their marijuana use.  Egged on by his biological father, the boy photographed the drugs, gave the photos to his father and his father turned them in to the police; who arrested them.

This isn't a moral discussion about whether they got what they deserved – that's an entirely separate issue.  Was the 11-year-old manipulated by his father (who may or may not have had another agenda)?  Did the child want his parents to be arrested?

Substitute the drugs with a PDA or laptop.  Do you leave your personal device booted up in the living room without a password?  What about your company device?  What's on it?  Who might have access to it?  What might they do if they're angry with you?

Just something to think about…

…After the Horse has Escaped. #PDA and the #5thAmendment


 

I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key…"

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer – in proper working order – will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation – and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one…

Closing the Barn Door… #PDA, #GPS & the #4thAmendment

MP900385971If you’ve been following my Tweets lately (I made it easier to do last week by adding a Twitter module to the sidebar), you know I’ve been spending a lot of time linking you to what I feel are some of the best analyses available on the developing area of how 4th Amendment searches & seizures pertain to new technology.

All eyes are on the Supreme Court again, as they prepare to hear arguments this coming Monday in U.S. v. Jones.  Jones pertains to the use of GPS tracking devices and goes directly to the core issues; 1) What is a reasonable expectation of privacy, and 2) When is a warrant required?  For one such analysis, here’s a link to Erwin Chemerinsky’s view.

We also have the emerging issue with cellphones and PDAs.  This morning, I read a great analogy by Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, who – correctly, in my view – likens PDAs to “…a key to your house. When you have someone’s key, you don’t just have a physical object, you have a way to investigate his life in ways you otherwise wouldn’t have.”  [italics/bold added]

You also need a warrant before you enter.

As an IT representative, I had the most trouble explaining this to laymen.  People who are familiar with technology better understand that the information is everywhere and nowhere.  People with less experience tend to think of information in dimensional terms, or not as the string, but as the cans on either end (what we used to refer to as ‘guzinta/guzouda’).

A good example of this was when I was asked by a representative of the Los Angeles County District Attorney’s Office to examine their pilot program for helping parents protect their kids from predators.  One of the suggestions was to make sure that the family PC was in an open area of the house so that parents would always be able to know what their kids were doing.  They visualized the PC as if it were a telephone, e.g. I call your home number and it rings in your home on one of your physical devices.  They couldn’t grasp that if the child was up to something they didn’t want their parents to know about, they’d likely be doing it at a friend’s house, at school or at the library.  In essence, a person could access their information anywhere, not just on the home PC.

Another example was an instruction to parents to demand that their kids provide them with their email accounts.  Again, under 18 or not, if a child is hiding something, they’ll set up a free email account – and they won’t be telling you about it.

Keep in mind, the above examples are pre-texting and pre-PDA.  Of course, now that we have PDAs, texting, etc., non-tech-savvy-people have a much easier time understanding the transitory nature of information.

Sometimes, though, I envision judges as those same parents.  I guess if I were appearing in front of the Supreme Court, I’d tell them that searching someone’s PDA is akin to searching a 4-drawer file cabinet, but with one thing in common between the two; if the owner locked the cabinet (password-protected the PDA), the government would need a warrant

Now comes the more difficult argument; explaining how a password is exactly the same as a key…