Category: Criminal Procedure


Volume 60, Issue 1 (October 2012)

Volume 60, Issue 1 (October 2012)


Not This Child: Constitutional Questions in Regulating Noninvasive Prenatal Genetic Diagnosis and Selective Abortion Jaime Staples King 2
A Labor Paradigm for Human Trafficking Hila Shamir 76
Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule Kate Weisburd 138


Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry Naomi Straus 182
What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b) Amanda R. Wolin 262

Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.


Prosecutors, Gambling and Dead Horses

Should federal prosecutors who settled a tax fraud case with the New York Racing Association back in 2003 (amended in 2005) be kicking themselves? Besides commitments typical of criminal settlement agreements (called deferred prosecution agreements), to improve internal control and governance, this one required the NYRA to continue its best efforts to install gambling machines at the track. It finally did so last year and the results have included the deaths of 21 horses during the winter meet.

Gambling is a controversial topic and New York State politicians had in 2003 just begun a push to expand the kinds of gambling that are legal in the state, starting with video gaming machines at horse racetracks. Why federal prosecutors settling a criminal tax suit should have anything to say about the NYRA’s role in advancing this agenda is not clear. Prosecutors did not explain their reasoning when signing the DPA.

In any event, the NYRA worked earnestly to move its gambling program along amid growing political and legal controversy in the state over gambling. It finally prevailed, opening a gambling emporium at the Aqueduct track in Queens in October 2011. In the ensuing season, an astonishingly high number of horses — 21 — died while racing.

In March, Governor Andrew Cuomo formed a task force to investigate and in May took state control over the track from the NYRA. The task force released its report last week identifying numerous causes for the deaths and prescribing extensive reforms of the NYRA and Aqueduct operations. Among the culprits: casino funding was allocated to massively increase awards to owners of winning horses in lower-level claiming races. Read More


The Policeman’s Legal Digest / A Walk Through the Penal Laws of New York (1934)

I collect old police manuals, mostly because I like to see what police were directed to do before the exclusionary rule came into the picture.  I also enjoy reading the lists of crimes that appear in some of these guides. Are these lists as interesting as the “Mad Men” / Rick Astley mash-up? No. But I take what I can get.

Some of these crimes are still with us; others have vanished from courtrooms in the intervening years. Though that doesn’t necessarily mean they’re off the books; here in California, for example, it’s still a misdemeanor (as it has been since 1872) to kill, wound, or trap any bird within a cemetery, or to destroy any bird’s nest within a cemetery — except, of course, for swallows’ nests, which are specifically exempted by the pertinent statute (Penal Code 598). (Thinking.) Nope, I can’t say that I recall ever invoking this law back when I was a deputy D.A.

One police manual in my collection, M.J. Delahanty’s The Policeman’s Legal Digest, offers an interesting list of crimes that were on the books in circa-1934 New York. In addition to murder, manslaughter, rape, robbery, burglary, theft, and other longtime staples of the criminal docket, the Digest also told officers that they should stay on the lookout for many other crimes that no longer weigh heavily on the minds of most New Yorkers.

For each crime listed in the Digest, the manual identifies the essential elements of the offense (often in a somewhat confusing flowchart manner), as well as the section of the Penal Law or other New York code that relates the crime.  Some of the more exotic — by modern standards — crimes related in the Digest are (the list goes on, and on, after the jump):

Compulsory Prostitution of Wife (Penal Law sec. 1090)

Adultery (PL 100)

Compelling a Woman to Marry (PL 532)

Seduction (PL 2175)

Immoral Plays and Exhibitions (PL 1140-A)

Wayward Minor (C.Cr.P 913-A)

Abortion (PL 80)

Self-Abortion (PL 81)

Manufacturing or Selling (miscarriage) Instruments (PL 82)

Read More


Adventures on the Back of the Envelope, Part III: What’s the Hardest Federal Crime to Prove?

What’s the most difficult federal crime to prove at trial? A little while ago, I tried to answer this question by running a series of inquiries in a database that I’ve put together. This database relates the charge-level disposition of all federal court cases that terminated between October 2002 and September 2009. By framing the proper queries, I can tease out data that, while far from perfect, suggests answers to questions like the one above.  (Among the limitations of the data, the database only lists the five most serious charges in each case, and I’ve spotted some inputting errors by court personnel.)

Anyway, take a guess. I’ll give you an answer after the jump.

Read More


Adventures on the Back of the Envelope, Part II: Warring Definitions of “Probable Cause”

While watching “Win Win” this evening (good movie, BTW), I decided to run another Criminal Procedure back-of-the-envelope drill. This time, I wanted to see if I could track the utilization of the various definitions of “probable cause.”

Among these definitions, courts have stated that probable cause exists “when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime”; when the known facts  “would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”; and when a “prudent person would have concluded that there was a fair probability that the individual had committed a crime.” There are other definitions out there, too; this is just a sampling.

I was a little curious about whether the “fair probability” language has become ever-increasingly prevalent since its unveiling by the United States Supreme Court  in Illinois v. Gates, decided in 1983.  “Fair probability” certainly seems to appear more frequently in recent decisions; do the numbers bear this out?

To find out, I ran another series of searches in the Westlaw ALLCASES database. This time, for each of the years 1980, 1985, 1990, 1995, 2000, 2005, and 2010, I charted the number of cases that featured each of the following phrases, each of which represents the core of a different “probable cause” definition (I have included the Boolean operators that I used in these searches, as well): 1. “fair probability” /p “probable cause”; 2. “honest and strong suspicion” /p “probable cause”; 3. (“reasonable grounds to believe” “reasonable person to believe” “reasonable officer to believe”) /p “probable cause”; 4. “prudent and cautious” /p “probable cause”; 5. “probable cause” /p “reasonable caution.”

I appreciate that there is some mush in the data, since these search terms certainly capture some cases in which the identified descriptive language wasn’t being used to define “probable cause.” But my quick review of the text of the search results suggests that the numbers below appear directionally correct, at least, with the largest number of “junk” results involving the last of these phrasings.

As for these results, the number of cases containing the language above were as follows (with the figures for each year being presented in the same order as the phrasing was listed above):

1980: 0  (FP) / 15 (H+S) / 66 (RG/RP/RO) / 8 (P+C) / 130 (RC)

1985: 113 / 9 / 90 / 10 / 122

1990: 173 / 4 / 116 / 3 / 143

1995: 206 / 7 / 117 / 10 / 182

2000: 246 /10 / 176 / 7 / 245

2005: 470 /33 / 261 / 18 / 315

2010: 747 / 35 / 334 / 16 / 535

So, it looks like the Gates language caught on pretty quickly, battled the previously prevailing “person of reasonable caution” formulation to a draw for a time, and recently pulled ahead–but even today, it only leads, and does not dominate, the field.

I’ve always (OK, only since I started practicing) thought that the “fair probability” phrasing suggests a less stringent standard than the “reasonable caution” language does; but the amorphous nature of probable cause makes it difficult to know what, if any effect, the growing popularity of “fair probability”–if the numbers above are to be believed–has had on mine-run probable cause determinations.


Adventures on the Back of the Envelope: Katz v. United States and the Popularization of the Phrase “Reasonable Expectation of Privacy”

I find it interesting how a case often is seen as standing for one thing when it’s decided, and something quite different years later. Relatedly, it can be interesting to see how courts come to glean from a decision a rule — or at least a catchphrase — that they then rely upon to decide cases before them.

I recently conducted a back-of-the-envelope exercise in this vein, sparked by a student’s question regarding the Fourth Amendment case, Katz v. United States. The gist of the student’s question was, how did the phrase “reasonable expectation of privacy” come to summarize the “was there a search” inquiry that kicks off most Fourth Amendment analysis–particularly when the phrase is found not in the majority opinion in Katz, but in Justice Harlan’s concurring opinion?

There’s a practical answer, of course, relating to the facts that (1) the next year, Terry v. Ohio parroted Harlan’s phrasing, and (2) Harlan gave courts a somewhat more workable (though still confusing) standard, or at least, framework for decision than Justice Stewart’s majority opinion did. But how quickly did courts catch on to this?

To probe this matter, working with the Westlaw ALLCASES database, I identified all state and federal cases that cited to Katz in certain subsequent years, and then, within each of these subsets, how many of these cases invoked the phrase “reasonable expectation of privacy.” The results:

1968: 3/58 (= 5%)

1969: 11/120 (=9%)

1971: 16/140 (=11%)

1973: 52/192 (=27%)

1977: 63/175 (=36%)

1981: 152/271 (=56%)

1985: 119/211 (=56%)

1989: 96/178 (=54%)

1993: 96/217 (=44%)

1997: 97/183 (=53%)

2001: 94/217 (=43%)

2005: 102/270 (=38%)

2009: 146/392 (=37%)

(I don’t know why we’ve seen a recent decline in the invocation rate for “reasonable expectation of privacy”; perhaps it has something to do with more cases being incorporated within Westlaw, perhaps something else.)

So, it looks like it took a little time–about a decade–for “reasonable expectation of privacy” to catch on as shorthand for the Katz approach. Either that, or the sorts of cases that courts heard changed over time, so as to present issues requiring resort to (or at least mention of) this test more often as the 1970s progressed. Either explanation is plausible, I suppose. One also wonders whether similar slow-burn patterns of diffusion exist in cases where a concurring opinion (in a non-Marks setting) becomes accepted as stating the governing rule.


Stanford Law Review Online: Pulling the Plug on the Virtual Jury

Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.


Biometric Databases and Quantitative Privacy

The new $1 billion Next Generation Identification (NGI) system is now in its roll out phase. NGI–a joint project of federal, state, and local law enforcement and other agencies — is a nationwide network of databases containing images of the body’s characteristics, such as fingerprints, iris, retina, voice, and face.  Here is a little primer on how biometric systems work (see my SoCal Reservoirs of Danger article).  Databases store images of biometric information, either as pictures or mathematical formulas of images called templates.  The biometric system matches an individual’s fingerprint, for instance, with an image or template stored in databases.  Aside from governmental forays into biometric collection and use (which are many), private biometric providers hold templates of millions of individuals.  Elementary schools, airports, gas providers, grocery stores, health clubs, workplaces, and even Disney’s theme parks collect iris scans and fingerprints to secure access to physical plants and/or accounts.  Companies reportedly are creating central clearinghouses of biometric information for commercial use.

According to Assistant Director Tom Bush of the Criminal Justice Information Services Division, NGI  is a “state-of-the-art identification system that will be bigger, faster, and better than IAFIS (Integrated Automated Fingerprint Identification System).”  It is “bigger” because it will increase the capacity of fingerprint storage plus house multimodal biometrics records like palm prints and iris scan and have room to accommodate future biometric technologies (i.e., voice, gait, etc.) as they become available.  It is “faster” because it will speed up response time for high priority criminal ten-print submissions from two hours to about 10 minutes on average. It is “better” because going beyond fingerprints as biometric identifiers will enhance the investigative and identification processes. Adding palm prints makes sense, according to Bush, because latent prints left behind by criminals at crime scenes are often palm prints. NGI is also being developed “to be compatible with other U.S. biometric systems and potentially with those of some foreign partners.”

The FBI’s NGI website proclaims that its many virtues include:

Interstate Photo System Enhancements


Closeup photo of an arm tattoo.  Currently, the IAFIS can accept photographs (mugshots) with criminal ten-print submissions. The Interstate Photo System (IPS) will allow customers to add photographs to previously submitted arrest data, submit photos with civil submissions, and submit photos in bulk formats. The IPS will also allow for easier retrieval of photos, and include the ability to accept and search for photographs of scars, marks, and tattoos. In addition, this initiative will also explore the capability of facial recognition technology.

Multimodal Biometrics


The future of identification systems is currently progressing beyond the dependency of a unimodal (e.g., fingerprint) biometric identifier towards multimodal biometrics (i.e., voice, iris, facial, etc.). The NGI Program will advance the integration strategies and indexing of additional biometric data that will provide the framework for a future multimodal system that will facilitate biometric fusion identification techniques. The framework will be expandable, scalable, and flexible to accommodate new technologies and biometric standards, and will be interoperable with existing systems. Once developed and implemented, the NGI initiatives and multimodal functionality will promote a high level of information sharing, support interoperability, and provide a foundation for using multiple biometrics for positive identification. Read More


Crime and Criminal Lawyers

The always blunt Scott Greenfield writes:

“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .

[snipping some typical anti-law school commentary…]

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”

I don’t know if the trend that Scott describes is local (NY) or national.  (The students I know in criminal practice are either PDs or too fresh to know the regional market well.)  If it is a national trend, it’s disturbing.  Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime.  Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data.  The decline in BigLaw results from outsourcing, client-billing pressure, and digitization.  None of that is present here.  What’s going on?  Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?

Knowledgeable and signed comments will be welcome.