Category: Criminal Procedure


Reciprocal Criminal Discovery, Or, What Was That Story Doing In My Sunday Times?

nytlogo379x64.gifFor some reason, the New York Times featured a story in Sunday’s paper about a change in Massachusett’s criminal procedure rules. A little over two weeks ago, in Commonwealth v. Durham (446 Mass. 212), the state’s high court ruled that under its reciprocal discovery rule, a judge could compel a defendant to turn over statements by Commonwealth witnesses if s/he hoped to use these statements to impeach the witnesses. I have a couple of comments about this story. The first is really a question: why did it appear yesterday and why was it in the Times? The decision came down on March 14 and the Boston Globe (owned by the Times) ran a story the next day. The Times story wasn’t about a national trend. Although it did place the Durham case in a national context (without bothering to mention the case name), it was first and foremost about the two-week old state court decision. I thought that was odd.

What of the substance? As a public defender, I certainly would have preferred not to turn over any part of my case in advance. One of the lawyers quoted in the story suggested that having such information in advance will help witnesses lie better by preparing them for likely cross-examination questions. In some cases this will certainly happen, but I’m not sure about the efficacy of this coaching. In my experience, professional witnesses – like police – are pretty effective at modifying their testimony to address expected defects. This rule will rarely implicate police witnesses, however, because they typically refuse to give out-of-court statements to defense investigators. Lay witnesses – the people from whom defense investigators typically obtain statements – are often much less talented than police when it comes to testimony refinement.

One lawyer suggested that this rule may result in more dismissals as prosecutors learn about the weaknesses of their cases in advance. Possibly. But even where there is no reciprocal discovery rule, many defense lawyers share these statements with trustworthy prosecutors in the hope of getting a dismissal. I’m not sure how making this discovery mandatory improves a defendant’s lot.

The best argument for reciprocal discovery is that litigation usually produces the most “accurate” results when both sides are fully prepared. In the absence of reciprocal discovery, prosecutors are always at a bit of a loss regarding the weaknesses of their case (at least with respect to civilian witnesses.) If we trust prosecutors not to coach witnesses to lie, the rule seems reasonable enough. On the other hand, I have come across several aggressive prosecutors who view the process as a game rather than a truth-seeking function. In their hands, these statements will not necessarily produce greater accuracy.

In the end, sadly, this rule will have limited impact and its effects won’t be those predicted in the article. Most defense lawyers have no discovery to provide the DA. They often lack the time, the will and the resources to conduct serious investigations. I fear that a reciprocal discovery rule will end up being used as an excuse for further defense sloth. Why bother investigating, some may ask, when the witness will simply be coached to testi-lie? And I wonder whether courts considering ineffective assistance claims against these attorneys will agree that this explanation renders non-investigation a legitimate defense strategy.

Interesting stuff, this, but what in the world was it doing in my Sunday Times?


Georgia v. Randolph and Consent to Search One’s Home

house1.jpgOnce upon a time, a wolf came to the home of a little pig:

Wolf: “Hello, little pig, let me come in.”

Pig: “No, no! Not by the hair of my chinny chin chin!”

Wolf: “Well, then I’ll huff and I’ll puff and I’ll blow your house in.”

Pig’s Wife: “That won’t be necessary, Wolf, come in, come in.”

But it’s not yet time to rewrite the tale of the Three Little Pigs.

Last week, the Supreme Court decided Georgia v. Randolph, a Fourth Amendment case involving where the police searched a couple’s home. The wife (Janet Randolph) consented to the search; the husband (Scott Randolph) expressly refused consent to the search. The police searched anyway and found evidence of Scott’s drug violations. Can the police search a person’s home when he expressly refuses to consent yet when a co-habitant consents?

The majority of the Supreme Court held that the search violates the Fourth Amendment (Justices Souter, Stevens, Kennedy, Ginsburg, and Breyer). Chief Justice Roberts, along with Justices Scalia and Thomas dissented. Justice Alito did not participate.

What makes this case difficult is that it seemingly fits within several different strands of Fourth Amendment doctrine that are not entirely coherent. In the end, I believe that the majority got it right, but I think that the case presents a very tricky issue given existing Fourth Amendment doctrine.

It is clear that Scott had a reasonable expectation of privacy in his home. The general rule under the Fourth Amendment would be that the police need a warrant to enter and search a person’s home. However, one exception is if a person consents to the search.

But what if two people have control over the area that is to be searched or the things that are to be seized? If Scott weren’t home, Janet’s consent would allow the police to validly search the home. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that the “consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court held that even if the police wrongly believe that the person consenting to the search has authority over the property, the search is valid so long as the police error was reasonable and in good faith.

This case differs from Matlock in that Scott is present, not absent. And Scott has expressly denied his consent. Whom are the police to listen to — Janet who consents or Scott who doesn’t?

Chief Justice Roberts, in dissent, notes that the Court’s holding “provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.” At first blush, he seems to have a point. The result is odd — if Scott weren’t there to say no, the cops could come in and search. So why should things turn on whether Scott luckily happened to be there when the cops came knocking? The majority opinion finesses the issue but doesn’t really do a good job of explaining a difference.

I believe that there is an important difference, and I explained it in an earlier post. I wrote:

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Sexualizing Victims And Offenders

Rick Garnett blogged yesterday about a recent Eighth Circuit opinion in a sex abuse case. The appellate court reversed a trial court’s decision to close the courtroom during testimony of children allegedly abused by the defendant. A particularly interesting part of Judge Arnold’s short Sixth Amendment decision said:

The government implies in its brief that requiring children to testify in publicin this kind of case could only expose them to voyeuristic or prurient interests.

What did the government mean, exactly? Did it think that the defendant would get sexually excited during trial? Would pedophiles flock to the courthouse to witness the testimony?

I imagine that the government was suggesting that having a child testify about sex has the effect of sexualizing the child. Everyone watching this testimony, intentionally or not, would begin to see the child as a sex object. The government is probably right. Amy Adler has written a compelling piece arguing (in line with Judith Butler) that the criminalization of child pornography transforms images that would not otherwise be seen as sexual into sexual events. She suggests that, once we know child underwear ads might be pornographic, we’ll always look at these ads and ask: “is this this is a sexual image?” And of course once we ask that question, we’ve answered it.

In effect, the mere act of going to trial in a any sex crime case sexualizes the victim. We see that victim in his or her role as sexual object because that is how he or she is presented to us. If the right to a public trial is to have real meaning, Judge Arnold must be right that this phenomenon is no basis for closing a public trial.

This brings to mind an interesting post over at The Smoking Gun. TSG posted a series of mugshots under the heading “Foxy Felons.” One such canid, Casey Hicks, has threatened to sue TSG unless it removes her photo. It seems that she believes – based on blog commentary, no less – that TSG readers are using her photo for their own “private sexual gratification.” Perhaps Alabama, which is ever mindful of the dangers of sexual gratification, will add mugshots to its existing ban on sexual stimuli.


Gun Buffs And Fourth Amendment Lovers Unite!

Why haven’t two groups who adore individual rights come together? I would expect gun rights advocates (we’ll call them the NRA as shorthand) and privacy advocates (let’s name them the ACLU) to agree that government intrusions into personal and family space are bad. For some reason, the NRA has not bought into the Fourth Amendment part of this agenda. At the same time, I’d think the ACLU would benefit – politically, at least – by bringing the NRA into its civil liberties tent. And nothing about the gun rights agenda seems antithetical to the goals of the ACLU.

I can think of a few reasons why the NRA hasn’t joined the privacy bandwagon. First, NRA members/gun lovers may see themselves as “anti-crime” and they may see a weak Fourth Amendment as good anti-crime policy. This makes sense as long as they don’t imagine gun ownership as a crime. Second, the NRA may not like the public relations consequences of supporting privacy rights. Most of today’s Fourth Amendment cases involve the privacy rights of drug dealers and other unpopular characters. The NRA may not want to align itself with these miscreants, even on legal issues. Too many people already connect guns with crime.

I think the best explanation of all is that NRA members believe they’ll never need these protections – an assumption that is based on what I’d term a Second Amendment strategy. I suspect that the NRA believes legislatures won’t ban guns and, in any case, courts will strike such laws under the Second Amendment. There are two problems with this analysis. First, it is far from certain that courts will enforce a personal right to possess any and all firearms. There is little judicial support for this broad Second Amendment view, though some commentators have certainly made the case. Second, it is quite plausible that some jurisdictions – particularly states with substantially urban populations – will eventually prohibit entire classes of guns. And as Americans become more and more comfortable with governmental intrusions, generally, regulation of guns may become much more imaginable. At that point, gun owners could find great utility in the Fourth Amendment.

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NSA Surveillance: Blog Post Roundup II

In addition to the blog post roundup I did yesterday, here are more blog posts about Bush’s NSA surveillance worth reading:

David Cole, Bush’s Illegal Spying (Salon, Dec. 20, 2005)

“Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy’s communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.”

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)

“1. Because it’s not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place — which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

3. It’s also presumably not a “fundamental incident of war” for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.”

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NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

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Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we’ve identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin’s for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

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How Much Government Secrecy Is Really Necessary?


Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

I’m growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there’s a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

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Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

whitehouse4.jpgYesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”

Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.

“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.

“I was frankly astonished by the story,” he said. “My head is spinning.”

Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

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President Bush, the National Security Agency, and Surveillance

NSA2a.jpgThe New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Read the article. It is, in my view, quite startling. Here’s another very troubling fact:

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