Academic

Emails and the Common Interest Rule

Posted on September 07, 2010
As Wikipedia notes, the attorney-client privilege is one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that by assuring confidentiality the privilege encourages clients to make `full and frank disclosures to their attorneys, who are then better able to provide candid advice and effective representation...

Reasonable Expectation of Privacy . . . Not!

Posted on September 03, 2010
As I?ve explained in earlier posts, the 4th Amendment protects us from ?unreasonable? searches and seizures. And as I?ve noted, under the U.S. Supreme Court?s decision in Katz v. U.S., 389 U.S. 347 (1967), a ?search? violates a reasonable expectation of privacy in a place or thing...

Three or More Images . . .

Posted on September 01, 2010
This post is a recent decision of the Virginia Court of Appeals in which the court parsed the meaning of one provision of Virginia?s statute criminalizing the possession of child pornography. The case is Chapman v. Commonwealth, __ S...

Constructive Amendment, Variance and Thumbnails

Posted on August 30, 2010
As I?ve probably noted before, an indictment is a charging document which alleges that a particular person (the defendant named in the indictment) committed one or more crimes. As Wikipedia explains, an indictment is returned by a grand jury...

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The "Reasonable Continuation Rule" and Computers

Posted on August 27, 2010
As I?ve noted before and as I assume everyone already knows, the 4th Amendment creates a right to be free from ?unreasonable? searches and seizures and, in so doing, creates a default preference for having searches and seizures conducted pursuant to a warrant: a search (and seizure) warrant...

Defamation, Qualified Immunity and The Howling Pig

Posted on August 25, 2010
This post is about a federal civil rights suit brought under 42 U.S. Code § 1983. As Wikipedia explains, 42 U.S. Code § 1983 traces its origins to the Civil Rights Act of 1871 and now stands as one of the most powerful authorities with which State and federal courts may protect those whose rights are deprived...

Chat Logs, Authentication and the Best Evidence Rule

Posted on August 23, 2010
I?ve done several posts on authenticating online communications, including one that deal with authenticating text messages and with a hearsay challenge to the admissibility of such messages. This post is about a recent case from Indiana in which the admissibility of chat logs was challenged on the basis that they weren?t properly authenticated and/or violated the best evidence rule...

Abandonment Not a Defense to an Attempt Charge

Posted on August 20, 2010
As I?ve noted before, ?attempt? is an inchoate, or incomplete, crime. As Wikipedia explains, the ?essence of the crime of attempt is that the defendant has failed to commit the actus reus (the Latin term for the `guilty act) of the full offense, but has the direct and specific intent to commit that full offense...

Cell Phones and Contempt

Posted on August 18, 2010
I wondered how, if at all, courts are dealing with attorneys, witnesses and/or spectators who show up with cell phones that haven?t been turned off . . . so I did a little research to see if anyone had been sanctioned for such conduct...

The Forensic Preview and the Independent Source Doctrine

Posted on August 16, 2010
As I?ve explained in other posts, the 4th Amendment creates a right to be free from ?unreasonable? searches and seizures, i.e., searches and seizures that are neither conducted pursuant to a search/arrest warrant nor to an exception to the 4th Amendment?s warrant requirement...

"True Threat" or "Cry for Help"?

Posted on August 13, 2010
As I?ve explained in earlier posts, courts use the concept of ?true threat? to distinguish speech that is protected by the 1st Amendment from threats, which aren?t protected by the 1st Amendment. In a post I did last year, I explained why threats aren?t protected by the 1st Amendment...

The Computer Fraud and Abuse Act and the Thumb Drive

Posted on August 11, 2010
As I?ve noted before, the general federal computer crime statute -- 18 U.S. Code § 1030 (a/k/a the Computer Fraud and Abuse Act or CFAA) ? isn?t just a criminal statute. It also creates a civil cause of action for those who have been injured ? have suffered "damage" -- as a result of a criminal violation of the statute...

The Mirror Image and the Physician-Patient Privilege

Posted on August 09, 2010
As Wikipedia explains, the physician-patient privilege is a rule of law that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many ...

Intercepting Text Messages

Posted on August 06, 2010
A while back, I did a post about an officer?s reading text messages on a suspect?s seized cell phone, and someone asked about intercepting text messages. So I thought I?d do a post on that issue. I?m going to use Commonwealth v...

Daubert and Cell-Site Data

Posted on August 04, 2010
As I explained in an earlier post, the U.S. Supreme Court?s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) established the test federal (and many state) judges currently use to determine the admissibility of expert testimony in trials and other proceedings...

Plain View Seizure of Computer . . . Fails

Posted on August 02, 2010
As I?ve explained in earlier posts, the 4th Amendment outlaws ?unreasonable? searches and seizures, which means ?reasonable? searches and seizures don?t violate the 4th Amendment. As I?ve also explained, to be ?reasonable? a search/seizure must either be conducted (i) pursuant to a search warrant or (ii) pursuant to an applicable exception to the warrant requirement...

Constructive Possession, the 5th Amendment and Grand Jury Subpoenas

Posted on July 30, 2010
This post is about a case that brings together three principles ? constructive possession, the 5th Amendment privilege against self-incrimination, and a grand jury?s subpoenaing computer evidence ? I?ve mentioned in earlier posts. Before we get into the principles and how they apply/don?t apply here, I need to outline the facts and issue in the case...

More Juror Misconduct

Posted on July 28, 2010
This is yet another post about technologically based juror misconduct in a criminal trial. As I explained in one of my early posts on the topic, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial...

Miranda, the 5th Amendment and Cell Phones

Posted on July 26, 2010
This post is the product of a discussion I had recently with a law professor who?s writing a law review article on police officers? ability to search a cell phone under the search incident to arrest (?search incident?) exception to the 4th Amendment...

More on Blockburger, Possession and Distribution

Posted on July 23, 2010
About a year ago, I did a post in which defendants who had separately been convicted of child pornography crimes claimed their convictions violated the U.S. Supreme Court?s decision in Blockburger v. U.S., 284 U.S. 299 (1932). As I noted, in Blockburger the Court addressed Harry Blockburger?s claim that his conviction for selling morphine to the same person ? albeit on different days ? violated the Constitutional prohibition on double jeopardy...

Framing

Posted on July 21, 2010
I was thinking about the false imprisonment post I did last week. I was thinking about the comments that went to using false imprisonment and/or falsifying evidence statutes to prosecute people who use text messages to falsely implicate someone in a crime...

Text Messages "Part and Parcel" of Cell Phone

Posted on July 19, 2010
This post is about a case the Indiana Court of Appeals decided last year. I?m doing a post on the case because as far as I can tell, the precise issue it addresses hasn?t come up before. I?m also not sure if the Court of Appeals? decision is correct, or not...

False Imprisonment

Posted on July 16, 2010
You may have seen the stories about the woman who was recently sentenced to a year in jail for sending threatening text messages to herself. As the Wired story explains, Jeanne Manunga sent ?hundreds of threatening text messages to herself ? in a bid to get her former boyfriend and his sister-in-law arrested by blaming them as the authors...

Authenticating a Pseudonymous MySpace Posting

Posted on July 14, 2010
I?ve done several posts on authenticating MySpace evidence (because the issue seems to be coming up a lot). This post is about a decision from the Maryland Court of Appeals in which the court considered whether a ?pseudonymous posting? on a MySpace site was properly admitting into evidence at trial...

Presumptions and Print-outs

Posted on July 12, 2010
As Wikipedia explains, under the laws of evidence in effect in the United States, a presumption of a particular fact can be made without the aid of proof in some situations. . . . The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial...

The Vehicle Exception and Locked Containers

Posted on July 09, 2010
This is a follow up to my last post, which dealt with the application of the vehicle exception to an officer?s searching a cell phone and reading text messages. If you want to know more about the facts and the legal issue involved in that case, check the prior post...

The Vehicle Exception and Cell Phone Searches

Posted on July 07, 2010
As I?ve explained in earlier posts, the vehicle exception is one of the exceptions to the 4th Amendment?s default rule requiring that officers obtain a search (and seizure) warrant before they search a place or a thing. As Wikipedia notes, the vehicle exception lets an officer ?search a vehicle without a warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle...

Privacy and the Thumb Drive

Posted on July 05, 2010
I?ve done a couple of posts that dealt with 4th Amendment issues and thumb drives. This post is about a case in which the issue was whether the [Durdley] had a 4th Amendment expectation of privacy in a thumb drive. As I?ve noted before, the 4th Amendment creates a right to be free from unreasonable ?searches? and ?seizures...

Abandonment and Consent

Posted on July 02, 2010
As I?ve noted in prior posts, and as Wikipedia explains in some detail, the Supreme Court has recognized a number of exceptions to the 4th Amendment?s requirement that law enforcement officers obtain a search (and seizure) warrant before they search a place or a thing for evidence of a crime...

"Possession" and the Thumb Drive

Posted on June 30, 2010
As I noted in a post I did a couple of years ago, most people know that the law makes it illegal to ?possess? certain items, including controlled substances and child pornography. What I suspect most people don?t know is that there are, as I explained in that post, two kinds of possession: actual and constructive...

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