Probation in the Modern World

In the early hours of Sunday, October 27, 2013, police officers arrested singer Chris Brown and his bodyguard in Washington, D.C.  Early reports allege that Brown and his bodyguard attacked a man outside the W Hotel by the White House.  While a police investigation will determine whether or not Brown is guilty of the crimes he committed, he faces the very serious issue of having violated his probation.  At the time of the arrest, Brown was on probation following his February 2009 arrest for assaulting his then-girlfriend, Rhianna.

Navarette v. California: Will the U.S. Supreme Court Rule in Favor of an Anonymous Tip Exception for Reckless and Drunk Driving?

On October 1, 2013, the United States Supreme Court granted certiorari in Navarette v. California, the case questions whether an anonymous tip about a motorist’s reckless driving is enough reasonable suspicion for a police officer to pull over that motorist, without the officer first corroborating the tip with his own investigation.[1]  This case is timely considering the present division among state and federal courts on this issue.

Buccal Swab "Booking Procedures": Lower Courts Struggle to Apply Maryland v. King

On June 3, 2013, the Supreme Court handed down a widely-anticipated opinion in Maryland v. King.  In this case, the defendant’s DNA was collected by the state after an arrest for first-degree assault.  Though he pled to a lesser misdemeanor charge, King’s DNA was found to be a match for an unsolved 2003 rape for which he was eventually convicted.  The Court addressed the following issue: “whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.”  Justice Kennedy, writing for the Court, did not examine the issue in isolation, but considered it in light of Maryland’s DNA Collection Act, which contained various protections for the accused.  Specifically, DNA could only be collected if the individual was charged with a violent crime, could not be recorded or stored until after the individual was arraigned, and samples would be destroyed if the criminal action did not result in a conviction; further, the DNA could not be used for any purpose other than identification.

Inaccurate Background Checks: An Expunction of Job Opportunities?

For criminal defenders an acquittal usually means a job well done.  However, some acquitted defendants can still suffer from their interactions with the criminal justice system, due to the increasing reliance of potentially inaccurate FBI background checks.  These individuals can see their future job opportunities limited because an arrest can remain on their criminal record without an explanation.  An incomplete or incorrect background check can drastically impair a person’s ability to find or hold a job, especially when FBI background checks often fail to report the final outcome of an arrest.  Therefore, those who have been arrested, but have not been charged with a crime, suffer merely for their brief interaction with the criminal justice system.  For these reasons, when faced with a client who is acquitted or arrested and not charged, criminal defense attorneys must aggressively move to expunge arrest records to prevent a future detriment to a client from an inaccurate background check.

In-Court Identification: Is It Inherently Prejudicial?

There is a hotly contested battle between the prosecution and the defendant on the reliability of various types of identification procedures.  Anyone in the criminal field will have heard about a photo array or a lineup.  However, there is one type of procedure that seems to fly under the radar: the in-court identification.  This presents a real due process concern because even though eyewitness testimony is unreliable and open to post experience suggestion, it is still very persuasive to juries.  Further, an in-court identification is much more dramatic than a pretrial identification procedure and thus has the potential to compound the persuasiveness to juries.

"Scenes of a Crime": A Documentary Surrounding the Adrian Thomas Case and a Look at False Confession Experts

Scenes of a Crime is a fascinating documentary examining the case and confession of Adrian Thomas.  On September 21, 2008, one of Adrian Thomas’s four-month-old twin sons, Matthew, was taken to the hospital for difficulty breathing.  The admitting doctor identified signs of Sepsis (caused by infection) and started to treat Matthew with antibiotics and ordered testing.  Matthew was transferred to another hospital where Dr. Walter Edge, who was working in the Pediatric Intensive Care Unit, was concerned with fluid around Matthew’s brain.  Dr. Edge suspected the fluid was the result of intentional abuse and notified the police; Child Protective Services removed Thomas’s six other children from the home.  Later at the hospital, Dr. Edge told the detectives “somebody murdered this child, this child [is] going to die.”   

No Knock, No Problem?

The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures.[1]  Traditionally, the common law doctrine governing the reasonableness of police searches of private homes required officers to knock and announce their presence, giving the owner opportunity to answer.  This rule was adopted to limit unnecessary destruction of forced entry into private homes.  In 1970, Congress passed the Comprehensive Drug Abuse, Prevention, and Control Act, which authorized the use of no-knock warrants.[2]  After seeing the dangers of this method, Congress repealed the law in 1974.[3]  The Supreme Court, however, has ruled that in some circumstances, knocks are not necessary.  No-knock searches can be performed with a warrant authorizing entry without announcement.  If a warrant does not authorize entry without announcement, then a court must consider that when analyzing the reasonableness of a search.

Quality Control in an Era of Confrontation

The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions” the accused shall “be confronted with witnesses against him.”[1]  As with all reserved rights, the question arises as to what degree and in what context a defendant may exercise this and other rights.  The United States Supreme Court declared between two cases – Bullcoming v. New Mexico[2] and Melendez-Diaz v. Massachusetts[3] – that “testimonial” evidence includes a sworn report submitted by a lab technician describing the results of laboratory drug tests.[4]  Applying this standard excludes a laboratory report submission under hearsay when a witness is unavailable and the defendant has not had a prior opportunity to cross-examine.  Therefore, a laboratory report prepared in anticipation for prosecuting a defendant requires the prosecution to produce the lab technician who performed the tests for cross-examination.  A certified report from a laboratory will not suffice to secure its admission at trial.

Guest Post on the Intersection of Patent Law and Criminal Law: Do you need a patent to protect your design to prevent crime?

If you’re a budding entrepreneur and a bit of a tech whizz, you’ve probably got a number of ideas, designs and concepts under your belt.

Ever wondered whether you should protect these designs and ideas?

A general conversation with friends, an overheard conversation, or just someone who decides they can make some money from your design could easily steal it and pass it off as their own; this is a criminal offence – but only if you have protected your work.