Category: Criminal Procedure


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.


Volume 59, Issue 6 (August 2012)

Volume 59, Issue 6 (August 2012)


From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control Kimberlé W. Crenshaw 1418
Prison, Foster Care, and the Systemic Punishment of Black Mothers Dorothy E. Roberts 1474
Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System Jyoti Nanda 1502
The New Racially Restrictive Covenant: Race, Welfare, and the Policing of Black Women in Subsidized Housing Priscilla A. Ocen 1540
Justice for Girls: Are We Making Progress? Francine T. Sherman 1584
Engendering Rape Kim Shayo Buchanan 1630
Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody Brenda V. Smith 1690
“In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights George Lipsitz 1746


Unlocking the Gates of Desolation Row Sara Taylor 1810

United States v. Skinner: Developments in the Surveillance State and a Response

It’s not news to CoOp readers that Fourth Amendment law is in a state of confusion over how to deal with ever-expanding capacities of state agents to collect information about our movements and activities using a range of surveillance technologies.  My colleague David Gray and I have spent lots of time thinking and writing about the fog surrounding this issue in light of United States v. Jones.  So we write this post together — Professor David Gray is my brilliant colleague who has been a guest for us in the past.  So here is what is on our minds:

The Supreme Court avoided a four-square engagement with these issues last term in Jones by rehabilitating a long-forgotten, but not lost, property-based test of Fourth Amendment search.  For most of us, however, the real action in the opinion was in the concurrences, which make clear that five justices are ready to hold that we may have a reasonable expectation of privacy in massive aggregates of data, even if not that is not true for the constituent parts.  The focus of the academic debate after Jones, including a really fascinating session at the Privacy Law Scholars Conference in June, has largely focused on the pros and cons of the “mosaic” theory, which would assess Fourth Amendment interests in quantitative privacy on a case-by-case basis by asking whether law enforcement had gathered too much information on their subject in the course of their investigation.  Justice Alito, writing for himself and three others, appeared to endorse the mosaic theory in Jones, and therefore would have held that law enforcement engaged in a Fourth Amendment search by using a GPS-enabled tracking device to monitor Jones’s movements over public streets for 28 days, generating over 2,000 pages of data along the way.

Before the ink was dry in Jones, Orin Kerr was out with a powerful critique.  Orin’s concerns, which Justice Scalia seems to share, are doctrinal and practical.  Christopher Slobogin has since offered a very thoughtful defense of the mosaic theory, which comes complete with a model statute complete with commentary (take notice Chief Justice Roberts!).  Professor Gray and I just posted an article on SSRN arguing that, by focusing on the mosaic theory, much of the conversation about technology and the Fourth Amendment has gone badly wrong after Jones.  The Sixth Circuit’s opinion in United States v. Skinner confirms the worst of our concerns.  Another nod to Orin Kerr for putting a spotlight on this decision over at the Volokh Conspiracy.

The question put to the court in Skinner was whether the “use of the GPS location information emitted from [Skinner’s] cell phone was a warrantless search that violated the Fourth Amendment . . . .”  Writing for himself and Judge Clay, Judge Rogers held that “Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location” in the same way that “the driver of a getaway car has no expectation of privacy in the particular combination of colors of his car’s paint.”  Because the officers tracking Skinner only did so for three days, Judge Rogers also saw no quantitative privacy interest at stake.

Skinner is confusing in many ways.  The court is not entirely clear on what tracking technology was used, how it was used, which line of Fourth Amendment doctrine it relied upon, or how its holding can be reconciled with Kyllo.  For now, let’s bypass those issues to focus on what we take to be a dangerous implication of Skinner and perhaps the mosaic theory as well.  According to Judge Rogers, none of us has “a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”  That is, there is absolutely no Fourth Amendment prohibition on law enforcement’s using the GPS devices installed in our phone, cars, and computers, or trilateration between cellular towers to track any of us at anytime.  Because there are no real practical limitations on the scope of surveillance that these technologies can achieve, Judge Rogers’s holding licenses law enforcement to track us all of the time.  The mosaic theory might step in if the government tracks any one of us for too long, but it preserves the possibility that, at any given time, any of us or all of us may be subject to close government surveillance.

We think that something has gone terribly wrong if the Fourth Amendment is read as giving license to a surveillance state.  As we argue in our article, programs of broad and indiscriminate surveillance have deleterious effects on our individual development and our collective democratic processes.  These concerns are familiar in the information privacy law context, where we have spent nearly fifty years talking about  dataveillance and digital dossiers, but they have clear footing in the Fourth Amendment as well.  More precisely, we argue that a fundamental purpose of the Fourth Amendment is to serve as a bulwark against the rise of a surveillance state.  It should be read as denying law enforcement officers unfettered access to investigative technologies that are capable of facilitating broad programs of indiscriminate surveillance.  GPS-enabled tracking is pretty clearly one of these technologies, and therefore should be subject to the crucible of Fourth Amendment reasonableness—at least on our technology-centered approach to quantitative privacy.


Do Deferred Prosecution Agreements Create Third Party Beneficiaries?

In the field of corporate criminal liability, no subject is hotter than deferred prosecution agreements (DPAs).   In these, prosecutors agree with target corporations to defer or refrain from prosecution in exchange for the target admitting allegations and committing to various reforms. Reforms invariably include enhanced internal compliance programs, and sometimes top-level governance changes.   Terms provide that if the government determines that the corporation breached, it can prosecute. Given the admissions, conviction then is almost certain.

Several rationales support these functional settlement agreements. These include avoiding the risk of collateral consequences of corporate convictions (such as customer defection and investor withdraws that could ruin a firm, as happened with Arthur Andersen in 2005).  They may also be valuable alternatives to straight-up criminal convictions or civil regulation when investigations give prosecutors firm-specific information about corporate defects that the agreements can cure.  There are thus both public law enforcement (deterrence) rationales and private corporate rationales (reducing agency costs when managers act against the interests of shareholders).

DPAs are age-old devices but have become popular in the US only the past decade: only a couple dozen were ever used before 2003, but nearly 200 have been formed since.  This summer alone, federal prosecutors around the country have entered into a dozen of them with various corporate targets.  England is now considering whether to follow this American development.

Many open questions exist. For example, suppose a company breaches the agreement, as Wright Medical was alleged to have done this week.  The contracts state the rights of prosecutors clearly–they may proceed with prosecution.  Many contracts, including the Wright Medical deal, are silent on another question: are there any third party beneficiaries as a matter of contract law?  Are shareholders intended third party beneficaries of DPAs?  The issue is the government’s intention in exacting the corporation’s promise.  If the rationale is general deterrence, probably not; but if the rationale is reducing agency costs, probably so.  Any opinions?