Fourth Amendment in the Digital Age - April 3, 2015

How Real is a Facebook Threat?

The Supreme Court agreed in June 2014 to hear the case of Elonis v. United States, an important First Amendment challenge that will attempt to clarify after years of ambiguity and split decisions in the lower courts the question of when threats, specifically internet threats, should be taken seriously by the law.  The case will be heard on December 1^st of this year, and will clarify whether threats of violence made on social media sites such as Facebook, should be judged by (1) whether the speaker intended to harm anyone, or (2) whether the recipient was genuinely afraid of being harmed.  Essentially, it is a decision that will decide whether the crime should be judged by the actor’s subjective intent or the target’s subjective belief.

Online death threats are becoming all too common.  Recent examples include an 11-year-old who faced death threats through Facebook over his love of hunting, a mayor whose life was threatened by his paper boy, and hundreds of Harvard students who received emails from a sender who threatened to “shoot all of you” and “kill you individually.”

Privileges vs. Rights in a Defendant’s Struggle to “Prove” Innocence

Evidentiary privileges purport to safeguard interests and relationships.  They arise from the rules of evidence and can bar certain pieces of evidence from being used in a trial or other judicial proceedings.  The most common and well-known privilege is the attorney-client privilege where an attorney cannot testify to the relationship between him and his client, encouraging an open and honest dialogue with clients and their attorneys.  Another example of these privileges is the marital privilege where, in the interest of keeping the marriage tranquil and conflict-free, a husband cannot testify against his wife and vice versa (although the intricacies of how exactly this works varies from jurisdiction to jurisdiction).  In general, these privileges can help defendants exclude evidence arising from relationships where society has deemed communications to be private.  Understandably, these forms of evidence should be excluded at judicial proceedings, but what happens in a jurisdiction where these privileges exclude evidence that could help, or even exculpate, a defendant?  Doesn’t that defendant have the right to a fair trial and due process under the Sixth Amendment? Can privileges created under evidentiary rules really circumvent a defendant’s constitutional rights?

Ineffective Assistance of Counsel in Capital Cases

To Kill a Mockingbird: Atticus Finch and Tom Robinson

The Sixth Amendment of the United States Constitution grants criminal defendants the right to counsel in federal cases.  In 1963 the Supreme Court extended this right to state felony prosecutions in the landmark case Gideon v. Wainwright.  Twenty-one years after Gideon, the Supreme Court in Strickland v. Washington held that the right to counsel really means the right to effective assistance of counsel.  Generally speaking, ineffective assistance of counsel (IAC) can be defined as errors by counsel so severe in nature that the criminal defendant was denied a fair trial.  Strickland provides a specific test.  Under Strickland, a defendant must establish: (1) their trial lawyer’s performance fell short of an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  

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.