Tuesday, March 31, 2015

Six Months’ Probation for a Crime Carrying a 4-year Minimum Sentence

That’s the unusual plea deal that Tadrae McKenzie struck earlier this year in a case involving a “stingray” – a controversial device being used by law enforcement around the country to track individuals’ movements and phone calls.

For more information on how these devices operate, click here.
During the course of his trial, McKenzie’s defense attorneys sought information on how exactly the police had tracked his location.  When the judge took the unprecedented step of requiring state prosecutors to demonstrate exactly how a stingray (also called “cell site simulators,” “dirtboxes,” and “IMSI catchers”) worked, they offered McKenzie a deal he couldn’t refuse to avoid disclosing information about the device.

Monday, March 30, 2015

Of Drones, Phones and Privacy Zones

Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking WomanIn the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.

Sunday, March 29, 2015

Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Friday, March 27, 2015

Who gets the burden: Should universities be allowed to handle sexual assault cases?

The increase of Title IX violations and lawsuits against universities has led many to question why sexually motivated crimes can be investigated, tried, and decided upon by educational institutions instead of criminal proceedings through the justice system.

Tuesday, March 24, 2015

Criminal Trials and PowerPoint: The Importance of Juror Engagement

One huge hurdle that litigators encounter during trials is not only meeting their burden of proof to prevail, but also keeping the jury engaged.  A jury trial, especially in more serious or complex matters is not the three minute clip that you see on television or in the movies. Trials can be long, often extending over months, depending on the matter at hand.  Throughout that time, we have a jury box of humans who are taking in all of this information and then tasked with deliberating to render a verdict.  I specifically point to the jurors as humans, because as humans we have shifting attention spans.  This is why it is extremely important to put on compelling and engaging presentations to the jury.  In the criminal context, it can be very powerful to display demonstrative evidence in a memorable manner.

Friday, March 20, 2015

Fourth Amendment in the Digital Age - April 3, 2015

The Power of Deferred Prosecution

In recent years the Justice Department’s white-collar agenda has been marked by skyrocketing corporate settlements due in large part to the government’s increased reliance on Deferred Prosecution Agreements (DPAs). The use of these and similar agreements continue to be an essential enforcement tool for the U.S. Department of Justice and have become a hallmark of the government’s response to white-collar crime under the leadership of Attorney General Eric Holder.

Friday, March 13, 2015

Combating Drugged Driving: Drug Recognition Experts

In February 2015, the Hagerstown Police Department in Hagerstown, Maryland, received its first Drug Recognition Expert (DRE), adding to the ranks of over 7,000 DREs already credentialed.  There are certified drug recognition experts in all fifty states and the District of Columbia, with more being trained annually.  While the number sitting alone may seem large, the figure barely registers in comparison to the 765,000 sworn law enforcement officers reported to work for approximately 18,000 state and local police agencies in 2008 (statistics for 2012 have yet to be released—another census will not be performed until 2016).  Yet, these specialized officers, having undergone intensive training, serve an important role within their departments by assisting to identify and arrest drug-impaired drivers.

Tuesday, March 10, 2015

Legalize Veritaserum: A Defense of the Use of Neuroimagery in Lie Detection

Like the rest of the country’s coolest kids in high school, I dedicated what some would call an “unhealthy” amount of time to memorizing minute details about the Harry Potter universe.  Among my favorite of J.K. Rowling’s plot-hole-fillers du jour was a potion known as veritaserum, which would compel its drinker to tell truths, and only truths.

Friday, March 6, 2015

Determining Jury Instructions

In 1998 the defendant, Cedrick Shuler, 36, shot and killed Renee LaShawn Best, 26, in Southeast Washington as he fired at a man he believed killed one of his friends. The trial court used two theories of mens rea to instruct the jury on first-degree murder while armed: first, Mr. Shuler intended to kill Ms. Best, or second, Mr. Shuler’s intention to kill transferred to Ms. Best under the transferred intent doctrine.

Tuesday, March 3, 2015

The Plight of the Spanish-Speaking Public Defender

The role of a public defender has always played an important role in the criminal law system.  Guaranteed by the Sixth Amendment, every individual has a right to the assistance of counsel for his defense against any criminal charges brought against him.  However, as the Hispanic community in the United States grows, a unique issue in the criminal justice world has surfaced.