Category: Criminal Procedure


UCLA Law Review Vol. 63, Issue 3

Volume 63, Issue 3 (March 2016)

The System of Equitable Remedies Samuel L. Bray 530
Challenging the “Criminal Alien” Paradigm Angélica Cházaro 594
Plenary Power, Political Questions, and Sovereignty in Indian Affairs Michalyn Steele 666



Calibrating the Eighth Amendment: Graham, Miller, and the Right to Mental Healthcare in Juvenile Prison Sara McDermott 712
Mute and Moot: How Class Action Mootness Procedure Silences Inmates Michele C. Nielsen 760

Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education


The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

* * * *

Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews


MLAT – Not a Muscle Group Nonetheless Potentially Powerful

MLAT. I encountered this somewhat obscure thing (Mutual Legal Assistance Treaty) when I was in practice and needed to serve someone in Europe. I recall it was a cumbersome process and thinking that I was happy we did not seem to have to use it often (in fact the one time). Today, however, as my colleagues Peter Swire and Justin Hemmings argue in their paper, Stakeholders in Reform of the Global System for Mutual Legal Assistance, the MLAT process is quite important.

In simplest terms, if a criminal investigation in say France needs an email and it is stored in the U.S.A., the French authorities ask the U.S. ones for aid. If the U.S. agency that processes the request agrees there is a legal basis for the request, it and other groups seek a court order. If that is granted, the order would be presented to the company. Once records are obtained, there is further review to ensure “compliance U.S. law.” Then the records would go to France. As Swire and Hemmings note, the process averages 10 months. For a civil case that is long, but for criminal cases that is not workable. And as the authors put it, “the once-unusual need for an MLAT request becomes routine for records that are stored in the cloud and are encrypted in transit.”

Believe it or not, this issue touches on major Internet governance issues. The slowness and the new needs are fueling calls for having the ITU govern the Internet and access to evidence issues (a model according to the paper favored by Russia and others). Simpler but important ideas such as increased calls for data localization also flow from the difficulties the paper identifies. As the paper details, the players–non-U.S. governments, the U.S. government, tech companies, and civil society groups–each have goals and perspectives on the issue.

So for those interested in Internet governance, privacy, law enforcement, and multi-stakeholder processes, the MLAT process and this paper on it offer a great high-level view of the many factors at play in those issues for both a specific topic and larger, related ones as well.


How CalECPA Improves on its Federal Namesake

Last week, Governor Brown signed the landmark California Electronic Communications Privacy Act[1] (CalECPA) into law and updated California privacy law for modern communications. Compared to ECPA, CalECPA requires warrants, which are more restricted, for more investigations; provides more notice to targets; and furnishes as a remedy both court-ordered data deletion and statutory suppression.  Moreover, CalECPA’s approach is comprehensive and uniform, eschewing the often irrational distinctions that have made ECPA one of the most confusing and under-protective privacy statutes in the Internet era.

Extended Scope, Enhanced Protections, and Simplified Provisions

CalECPA regulates investigative methods that ECPA did not anticipate. Under CalECPA, government entities in California must obtain a warrant based on probable cause before they may access electronic communications contents and metadata from service providers or from devices.  ECPA makes no mention of device-stored data, even though law enforcement agents increasingly use StingRays to obtain information directly from cell phones. CalECPA subjects such techniques to its warrant requirement. While the Supreme Court’s recent decision in United States v. Riley required that agents either obtain a warrant or rely on an exception to the warrant requirement to search a cell phone incident to arrest, CalECPA requires a warrant for physical access to any device, not just a cell phone, which “stores, generates, or transmits electronic information in electronic form.” CalECPA clearly defines the exceptions to the warrant requirement by specifying what counts as an emergency, who can give consent to the search of a device, and related questions.

ECPA’s 1986-drafted text only arguably covers the compelled disclosure of location data stored by a service provider, and does not clearly require a warrant for such investigations. CalECPA explicitly includes location data in the “electronic communication information” that is subject to the warrant requirement when a government entity accesses it from either a device or a service provider (broadly defined).  ECPA makes no mention of location data gathered in real-time or prospectively, but CalECPA requires a warrant both for those investigations and for stored data investigations. Whenever a government entity compels the “the production of or access to” location information, including GPS data, from a service provider or from a device, CalECPA requires a warrant.

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The Double Jeopardy Clause and Puerto Rico

One of the cases granted by the Court yesterday raises some intriguing issues that I want to discuss.  In Puerto Rico v. Sanchez Valle, the question presented is whether Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause.  Under Bartkus v. Illinois, a 1959 decision written by Justice Frankfurter, the Double Jeopardy Clause does not bar the United States from prosecuting someone who was acquitted in a state criminal trial.  The Court’s theory was that this part of the Fifth Amendment applies only to a specific level of government–federal or state–that is sovereign. Is Puerto Rico analogous to a state because of its unique commonwealth status, or is it more appropriate to view Puerto Rico as a federal territory that is not a separate sovereign in this context?  Because Justice Sotomayor is Puerto Rican and wrote her Note on the legal status of the island, her perspective should be especially interesting

I hope, though, that some amicus or Justice raises the question of whether Bartkus should be overruled.  The decision rests on a very dubious rationale and, I think, applied incorporation incorrectly with respect to this powerful principle that protects unpopular defendants.  Someone should make this point assuming that the Court decides that Puerto Rico is a separate sovereign.


Privacy Security Novels 02

5 Great Novels About Privacy and Security

I am a lover of literature (I teach a class in law and literature), and I also love privacy and security, so I thought I’d list some of my favorite novels about privacy and security.

I’m also trying to compile a more comprehensive list of literary works about privacy and security, and I welcome your suggestions.

Without further ado, my list:

Franz Kafka, The Trial

Kafka’s The Trial begins with a man being arrested but not told why. In typical Kafka fashion, the novel begins badly for the protagonist . . . and then it gets worse! A clandestine court system has compiled a dossier about him and officials are making decisions about him, but he is left in the dark. This is akin to how Big Data can operate today. The Trial captures the sense of helplessness, frustration, and powerlessness when large institutions with inscrutable purposes use personal data and deny people the right to participate. I wrote more extensively about how Kafka is an apt metaphor for privacy in our times in a book called The Digital Person about 10 years ago.

Franz Kafka The Trial


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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672



Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794

Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

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Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”


Police Killing Unarmed Minority Men on Video with Impunity is not New

The grand jury’s decision to not indict a police officer in the death of Eric Garner despite video of the incident, in the wake of the failure to indict Darren Wilson, further illustrates the apparent immunity of police officers in cases where officers have killed ethnic minority Americans. The Garner case is a reminder that the interpretation of (crime) videos is filtered through pre-existing cultural lenses, but it also speaks to a more fundamental problem. The case provides more evidence that video has not been a panacea in addressing lethal violence by police officers, a fact which is relevant in discussing the likely efficacy of cop cams. I have posted other similar disturbing videos of lethal force being used against unarmed ethnic minority men (after the jump) wherein there has been no accountability in the criminal justice system for the officers involved.

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