Category Archives: Criminal Liability

Admissibility, Cases of Interest, Constitution, Criminal Liability, eMail, Law, Privilege, Sanctions, Scope, Technology

The 6th Amendment, the Blackstone Ratio & #eDiscovery

GOOBF Card

"Better that ten guilty persons escape than that one innocent suffer."

– William Blackstone, 1783

"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."

– Voltaire, 1749

Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States.  At least, they used to…I think that claim would be up for strenuous debate these days.

But that's why I wanted to bring you this particular case for our examination.  It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them – or something like them – in civil or criminal court.  After all, attorney-client privilege is attorney-client privilege – it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.

One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable…).

Such is the case with defendant.  The government seized certain computer records, and among those records were emails from defendant to his wife – which were subsequently forwarded to defendant's attorney.  Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.

What am I telling you?  First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.

Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system).  We have a job to do, our clients depend on us and we are to zealously represent – and protect – their interests.

File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."

Admissibility, Constitution, Criminal Liability, Implementation, Scope

The Star(t) Chamber


 

Take note; the FBI has given itself expanded powers to potentially examine information such as databases or your household trash; based on flimsy – or non-existent – evidence.  This is more of a "be aware" notice as some jurisdictions have been doing this already.

But it reminded me of the movie, The Star Chamber, because there was a scene in which evidence was tossed due to agents searching a suspect's trash and the court later finding that this required a warrant; because at the time of the search, the trash was deemed not to be in the public domain.  Based on several higher-court decisions, it's unlikely one would obtain that ruling today.

So here's my question.  What're they going to do when they're searching someone's computer trash folder?  Will it depend on the location of the machine?  Are discarded electronic files the same as discarded physical trash?  Will I be making this argument in a future court hearing, someday?

At first glance, this may seem specious, but I know many people who never empty their trash folder.

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Education, Implementation, Law Practice Management, Scope, Strategy

#CalBar Solo & Small Firm Summit Recap

MP900439382 Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions – which is the first indication they're not bored – and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting – who also preceded me on the LPMT committee – but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Judges, Law, Privilege, Scope

e-Discovery California: The ‘Leno’ Show Seeks to Overturn Diaz: SB 914

MP900443017 If you're not familiar with Diaz, begin here.  In a nutshell, the Supreme Court of California ruled that if arrested, the government may search your cellular device – without a warrant.  Now the California legislature is getting in on the act. 

State Senator Mark Leno (D-SF) has introduced SB 914 (which has already passed in the senate), seeking to overturn that decision and require the government to do things the old-fashioned way; procure a warrant based on probable cause.

I've previously said that the current ruling has the potential to lead us down a dangerous path.  As far as the state of California is concerned, this is a very important piece of 4th Amendment legislation.

Regardless of how this turns out, you already know my advice; set a password for your PDA – and keep it!

Cost, Criminal Liability, Law, Technology

e-Discovery Insights Turns Bi(Coastal) to Examine Teen Sexting

MP900431786 By (no pun intended) coincidence, both the states of California and New York are addressing sexting issues by students and/or teens.  The California Senate has already passed their version, while New York has only reached the proposal stage of their version.  New Jersey is ahead of both states and has already passed a bill.

California's approach is more in the discipline arena, spelling out how students may be punished for sexting where the misconduct falls under the jurisdiction of a school.  New York's is more broad and is geared toward a diversion program for first-time young offenders.

We've seen many jurisdictions take a very hard line where sexting by and between minors is concerned.  For example, children have been charged with distributing child pornography – even for sexting photos of themselves.  These are serious felonies that could result in jail time as well as the perpetrator being forced to register as a sex offender.

Furthermore, we get into a sticky area of protected classes, which are rules designed to protect the target class of an offense.  In other words, if a statutory rape charge is designed to protect a young female against the advances of a young male, and both are caught having sex, the rule prevents prosecuting the female because she's in the class the offense is designed to protect.  I refer to it as the "Groucho Marx" Rule (you know, "I wouldn't join any club that would have me as a member"?)  The relevance here is that in many sexting cases, minors are being charged via underage rules that were designed to protect – you guessed it – minors.

I like to preface all child-related discussions with the fact that I don't have any children, so I'm not pretending to be the most qualified in the area, however, my approach is to ask current parents what they think they might have done if they'd had access to all of this amazing technology when they were young and – most likely – didn't consider the consequences of their actions?  Do they think they might have done ill-advised, accidental or – dare I say – stupid things?  Most of them would probably admit they might have; or did.  Would they want their lives – and possibly their entire futures – destroyed due to one moment of poor decision-making?  Remember, the only difference between now and then is, Twitter, Facebook and the Internet didn't exist to capture it all in real-time.

Normally, I wouldn't 'go there', but since this just happened a couple of hours ago, what do you think Anthony Weiner (D-NY) is thinking about right now?

We have to look very carefully at the facts.  If the incident was truly devoid of the intent to do harm, I have to say, I like New York's approach.

Besides, dammit, if the Internet existed when I was young, I'd be a famous rock star instead of a lawyer!

Admissibility, Cases of Interest, Criminal Liability, e-Evidence Insights

e-Evidence Insights: Key Card ‘Chief’ in IMF Rape Prosecution

MP900431773 When one thinks about acquiring forensic evidence in relation to a criminal rape charge, I doubt electronic evidence would normally be on the list of items sought.  However, a hotel key card is likely to figure prominently in the prosecution of the now-former-IMF Chief, Dominique Strauss-Kahn.  Is the theory set forth by the information gleaned from the key card likely to be convoluted?  It seems likely, however, this serves as an appropriate reminder that eDiscovery is not just about civil cases.

Admissibility, Criminal Liability, e-Evidence Insights, eMail, Law, Privilege, Sanctions, Scope, Spoliation

e-Evidence Insights: A Good Senator, Spoliated.

…with deference to Mark Twain…

MP900400181 Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"…or Judge Judy…