Category Archives: Criminal Liability

Cases of Interest, Constitution, Criminal Liability, International, Law, Privilege, Security, Technology

Does this ‘Border’ on Unconstitutional?

MP900400680 When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure.  To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search.  Lawyers are well aware of this, but what about the general public?

Two issues are triggered here.  The first, privacy, I've written about before (see my International category).  Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).

However, today's discussion is a little more nuanced than that.  It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device?  Well, the short answer is, yes.  Is that proper?  Do you agree?

I suppose this might bring new meaning to the retort, "Don't touch my junk!"

Say you have a password-protected file with your personal banking, credit card and other financial information on it.  Now let's go one step further.  Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime?  Two steps further?  You keep both personal and corporate information on it (does that sound like you?).  What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?

I'll tell you the difference.  When you show up at the border, it's implied consent.  You waive your right to protest.  That's how the law stands now.  However, that may – or may not – change, subject to the outcome of the latest challenge.

In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

Exponential & X-Rated (F**k the Judge!)

MP900302829 Before anyone is offended by my use of the word "f**k", this is in a legal context and I'll explain at the conclusion of this post.

I've written a few posts about jurors ignoring their oaths and researching trials via the Internet or commenting on them via social media (heck I just wrote about it a week ago), but I hadn't seen any hard numbers to illustrate how pervasive the problem is; until now…

"The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years." [Bold & italics added]

Yes, I'm well aware of the ratio of 90 verdicts to the total amount of verdicts in any given year, but there are two things that concern me:

  1. If we, as attorneys, truly believe in the right to a fair trial under the 6th Amendment (criminal cases) – never mind the right to a fair trial in civil matters as well – we should be offended by the statistic, even if it happens only once (unrealistic, I know, but that's not the point).
  2. Look at the exponential growth – more than 50% of the challenges occurred in the past two years.

The illness is spreading.  The courts are addressing the issue by fine-tuning jury instructions, but if a juror is inclined to break the rules in the first place, I don't think an instruction will have much value unless it's followed up by punitive measures when the rules are violated.

Now, to the headline.  One of the things that was shocking to me when I was in law school was how specific case language can be.  It's not that I'm sensitive to those things, just that I didn't expect it.  This story reminded me of such a 1st Amendment case (anyone remember Cohen v. California?), but I was slightly amazed to read about a juror who was so out to lunch that he openly flouted the rules by posting "F**k the judge." on his Facebook page – about the judge overseeing the very case he was currently sitting on!

Wait a minute.  I sat on juries myself and have tried both civil and criminal cases.  I'm not that amazed…

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

The Sheppard, the Fugitive & The Twitter Defense!

MP900442461 If you’re a lawyer, you’ve probably come across “The Twinkie Defense” at some point in your studies.  But what about “The Twitter Defense”?

I suppose it was inevitable, but defense attorneys in a heinous Cheshire, Ct. rape and murder trial intend to argue on appeal that – among other issues – the jury succumbed to the undue influence of over 140,000 inflammatory tweets about the case that were publicly available.

If you’re me (which I am), the entire premise is fascinating because of where the issues take us.  How often do you think you’ll hear a Supreme Court decision from 1966 (specifically, Sheppard v. Maxwell) cited in support of a claim incorporating Twitter in 2010?

To me, it boils down to whether one believes that the tail is wagging the dog or vice versa.  Does the use of “new media” such as Twitter require new court rules?  Will the judges who consider the appeal even know what Twitter is or how it functions?

That’s ok; I guess they’ll just ask their young associates…

Criminal Liability, Privilege, Security

WikiLeaks & the Un-diplomatic Diplomats

MP900321206 I have visions of a film noir; dark alley, stormy night, mysterious person in trenchcoat, hat with the brim pulled low so the eyes are barely visible…did I mention it was stormy?  And while this scene plays out, the message is unmistakeable.  "We can get to you."

Well, diplomats, that applies to you, too.  Nothing like having your 'confidential' cables revealed for all of the world to see.

You didn't really call Kim Jong Il a "flabby old chap", did you?  Bet you wish you could take that one back, eh?

Perhaps this will serve as a timely reminder…

Constitution, Criminal Liability, Judges, Law, The Bench

The Bench: Oil Changes, Gonzales & Criminal Trials

Speedy_gonzales What do these three things have in common?  They're all expected to be speedy.  However, only one of them is a right guaranteed under the 6th Amendment to the U.S. Constitution.  Now, due to a shortage of judges in Riverside County, California, 18 criminal cases have been dismissed, with 300 more in the pipeline that were on appeal.  The California Supreme Court upheld the dismissals.

It would be intellectually dishonest to blame this solely on the budget crisis.  I attended a judges symposium about three weeks ago at which Riverside County's issues, among others, were discussed; and they aren't all monetary.

Andele!

Cases of Interest, Cost, Criminal Liability, Duties, Judges, Sanctions, Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

Admissibility, Constitution, Criminal Liability, e-Evidence Insights, Education, Strategy

e-Evidence Insights: ABC’s Primetime Crime: Inside the Interrogation Room

MP900448352 Many people have absolutely no idea what would happen to them if they were arrested.  In fact, it would shock them if they knew what the police are allowed to do versus what they think the police are prohibited from doing.

Television has conditioned the average person to think like this:

  1. The police 'invite' me down to the station for a chat
  2. I speak to them without an attorney present
  3. I go home

Or, maybe something like this:

  1. They arrest me
  2. They read me my Miranda rights
  3. I ask for an attorney

If only it were that simple.  If you have any interest in seeing an example of how things really might work, watch this 41-minute video from ABC's Primetime Crime (or read the article if you prefer).  I found it to be an excellent – and accurate – portrayal of interrogation tactics.

Hey – I'm not asking you for a lot of heavy lifting at the start of the Labor Day weekend!  Besides, forewarned is forearmed.  Please be safe – and if you're traveling, don't put this post into practice by getting snagged for a DUI.

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

e-Evidence Insights: Paris Las Vegas

MP900433045 I'm making this another category.  First of all, let me tell you that personally, I found evidence – whether civil or criminal – to be one of the most fascinating subjects in law school.  It was also one of the most complex.  As much as I wanted to get my JD and become an attorney, the problem was that I was in my 40s by the time I took evidence class.  That means, I'd had 40 years to think like a layman; re-programming to think like a lawyer was no mean feat.

But, as eDiscovery professionals, I can't think of anything more important to our clients than how we handle evidence.  It's the basis of everything we do, and not just the collection and processing of it.  There's chain-of-custody, authentication, contamination, etc.  I'm not just referring to physically handling the stuff, I'm referring to how the appropriate professionals should have in their mind a methodology for handling it even before it exists.  One false move and this opens the door to impeachment.

So, it is with great fanfare that I reveal that Paris Hilton has finally made it; to this blog, that is!  Why?  Because of how, as a layman, she handled her arrest for cocaine possession.  Not since OJ Simpson and his "ugly-ass" Bruno Magli shoes has someone – figuratively, this time – put their foot so firmly in their mouth; and in doing so, provided us with another outstanding example of how a bunch of seemingly-unrelated statements, photos and social networking posts may ultimately do her in.

Paris claimed – initially – that the Chanel purse wasn't hers.  What contrary evidence is out there?  Her Twitter post with a snapshot of the identical Chanel purse, exclaiming how happy she is with "my" new purse.  Does this definitively prove it's the same purse?  No; when it comes to criminal proceedings, nothing is that simple – nor should it be when someone's liberty is at stake.  However, if she's convicted, Twitter, TMZ and Radar Online may deserve the lion's
share of the credit.

[This story changes by the minute, but the latest appears to be that Paris now admits it was her purse, but the coke wasn't.  Oy…]

Don't ever tell me that "all publicity is good publicity" and expect me to agree with you…I defer to Miranda and the 5th Amendment.  I – and I suspect Ms. Hilton's criminal defense attorney – wish people would exercise their right to silence more often…

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Law

e-Discovery California: We Will…We Will…Track You!!!

MP900433086 Privacy took a major hit in the nine states encompassing the 9th Circuit.  The court found that the police have the right to attach a tracking device to a vehicle on private property.  That part isn't new.  What is new is that they held it may be done without a warrant.  To me, that is disturbing.  Do you see any dangers here?

This is another issue where reasonable people will disagree.  Some will look at it as another version of visual surveillance.  I don't have a problem with using a device in this manner; I just think the government should be required to secure a warrant.

I cringe when I hear arguments like "put out a 'No Trespassing' sign and then you'll be protected".  Either we possess rights or we don't.  I fail to see why I should have to advertise my right to privacy if it's a vested right.  Are we saying crooks don't need to be warned but the police do?

How far may the government go?  Suppose a person is drunk and passed out cold on their front lawn.  Should I assume the government now has the right to attach a tracking device to that person without their permission?

Another federal jurisdiction from D.C. has ruled the opposite way on a similar matter.  This will likely go to the Supreme Court.