Academic

No 4th Amendment Expectation of Privacy in Thumb Drive

Posted on March 21, 2011
I?ve done a few posts dealing with cases in which defendants claimed that law enforcement accessed the contents of a thumb drive in violation of the 4th Amendment. This post is about a case that?s similar in some respects, but presents what I think are some interesting issues...

Morphing and the 1st Amendment

Posted on March 18, 2011
As you may know, in New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court held that child pornography is not entitled to protection under the 1St Amendment for two reasons: One is that children are physically and emotionally abused in creating child pornography...

Right to Public Trial and Invited Error

Posted on March 16, 2011
As you may know, the 6th Amendment, in part, guarantees ?the accused? in a criminal prosecution ?the right to a speedy and public trial?. In Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), the U.S. Supreme Court explained that its cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant...

Denial of Motion for Return of Property Not a Final Appealable Order

Posted on March 14, 2011
As I?ve explained in earlier posts, there is a procedure ? at both the state and federal levels ? by which someone whose property has been seized by law enforcement agents pursuant to, say, a search warrant can seek the return of that property...

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Flight Simulator, Consent and the 4th Amendment

Posted on March 11, 2011
As I?ve noted in earlier posts, consent is an exception to the 4th Amendment?s default requirement that law enforcement officers obtain a valid search warrant (actually, a search and seizure warrant) before they search someone?s property and seize any evidence found on or in it...

?Filter Agents? and Privilege

Posted on March 09, 2011
This post is about a decision that involved the attorney-client privilege, emails, and a prosecution for failure to pay child support. Our concern is going to be with issues that arose from the intersection of the e-mails and the privilege...

Due Process, 6th Amendment and Emails

Posted on March 07, 2011
As Wikipedia notes, due process ?is the principle that the government must respect all of the legal rights that are owed to a person according to the law.? As Wikipedia also explains, in the United States the right to due process is guaranteed by two distinct provisions of the Bill of Rights: The Fifth Amendment?s guarantee of due process is applicable only to actions of the federal government...

Facebook, Temporary Release and Preparing a Defense

Posted on March 04, 2011
This post examines a rather unusual request submitted by a defendant in a pending federal prosecution. The request was filed in U.S. v. Jeffries, 2011 WL 182867 (U.S. District Court for the Eastern District of Tennessee 2011), and goes to an issue concerning the defense?s ability to prepare for trial, rather than a substantive (e...

Texts and ?Annoying Telephone Calls?

Posted on March 02, 2011
In Commonwealth v. Lane, 78 Mass.App.Ct. 1125, 940 N.E.2d 897 (Massachusetts Court of Appeals 2011), Sean Lane appealed his conviction for making ?annoying telephone calls? in violation of Massachusetts General Laws chapter 269 § 14A...

4th Amendment Expectation of Privacy in Vehicle?s SDM

Posted on February 28, 2011
George Xinos was ?convicted by a jury of vehicular manslaughter, failing to stop at scene of an accident resulting in the death or permanent, serious injury of another person, driving under the influence of alcohol and causing injury ...

Unallocated Space Insufficient to Establish Possession

Posted on February 25, 2011
As I?ve noted in earlier posts, the issue of whether a defendant ?possessed? child pornography has, in some case, come down to the issue of whether images stored in a computer?s cache files constitute possession. This post is about a case that raises a similar, but somewhat different, issue...

Compelled Consents and Facebook

Posted on February 23, 2011
This is a follow-up to my last post, in which I examined Juror Number One?s efforts to avoid being required to execute a consent form that would allow Facebook to provide postings from his Facebook page to certain attorneys. As I explained in that post, the attorneys represented the criminal defendants at whose trial Juror Number One served as a juror and as jury foreperson...

18 U.S. Code § 2702(b)(3) and Facebook

Posted on February 21, 2011
This post involves what might be juror misconduct, but it isn?t about juror misconduct, as such. It?s going to deal with an order a California federal judge recently issued in a civil suit that arose from a jury foreperson?s use of Facebook while he was serving on the jury...

Cellphone = ?Computer? under Federal Sentencing Guidelines

Posted on February 18, 2011
This post deals with an issue that came up in a recent case in which a defendant challenged the sentence imposed on him. Neil Kramer pled guilty to ?transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with her? in violation of 18 U...

Interstate Commerce and ?Producing? Child Pornography

Posted on February 16, 2011
As I?ve noted in prior posts, the requirement that criminal activity somehow involve the use of interstate or foreign commerce is the element that gives the federal government jurisdiction to criminalize, and prosecute, what would otherwise be a traditional state crime...

Divorce, Passwords and Keystroke Loggers

Posted on February 14, 2011
Contrary to how it may seem, I haven?t been looking for divorce cases involving spousal snooping to use as the basis of blog posts. For some reason, a number of them have cropped up lately, and I decided to do this post on a case that involves facts that are somewhat different from the facts in the cases I?ve written about before...

Zeus Sentencing

Posted on February 11, 2011
I don?t do many posts on sentencing in cybercrime cases, not because it isn?t an important issue but because sentencing is a pretty cut and dried process under the U.S. Federal Sentencing Guidelines. I?m making an exception in this instance because, as a September 30, 2010, Wired article explained, the person being sentenced was involved in an international ?fraud ring based in East Europe that stole more than $3 million from bank accounts belonging primarily to small businesses and municipalities, according to indictments released Thursday...

Admitting Police Officer?s Expert Testimony Was Not ?Plain Error?

Posted on February 09, 2011
As the Lawyers.com website explains, the party filing an appeal ?has the burden of persuading the appellate court that the trial court committed error. Standards of review are the principles used by the appellate court to review the trial court?s judgment...

Technical Problems

Posted on February 07, 2011
I don't know what's going on with Blogger (or maybe with my system?) . . . but I can't upload a photo to accompany a post. I gave up on that and tried to upload just the text . . . but I have no access to the formatting and other functions I need to do a coherent post, so I'm giving up for now...

Divorce and Email ?Hacking?

Posted on February 07, 2011
This is another post about a divorce case that gave rise to claims that one spouse ?hacked? the emails of another, thereby violating federal law. Like other, similar cases I?ve done posts on, this one involves a civil suit filed in federal court: Garback v...

Child Pornography Was Not Hearsay

Posted on February 04, 2011
The defendant whose case produced a recent decision from a Maine federal district court made an argument I?ve not seen before: He claimed that images of child pornography were hearsay and, as such, inadmissible against him at his trial on child pornography charges...

A Note on Early Posting

Posted on February 01, 2011
As you may have noticed, I usually do posts on Monday, Wednesday and Friday.I posted what should have been tomorrow's post today because I live in southern Ohio and we had a major ice storm last night . . . and have a bigger one (apparently complete with heavy rain, high wind, thunder, lightning and maybe space aliens) coming through tonight ...

Claim for Damages Resulting From Seizure of Laptop . . . Fails

Posted on February 01, 2011
Unlike most of my posts, this one isn?t about a criminal case. It?s about a civil suit in which a man sought damages for the seizure of his laptop as he returned to the United States from a trip abroad. The case is Kam-Almaz v...

Email, Business Records and Authentication

Posted on January 31, 2011
As I?ve explained in earlier posts, in order to introduce evidence ? such as emails ? at trial, the prosecutor or defense attorney must be able to show that the evidence meets the requirements of the applicable rules of evidence...

Computers and Health Care Fraud

Posted on January 28, 2011
This post deals with a recent New York case involving Saleem Khan?s prosecution for health care fraud in violation of New York Penal Law Article 177. People v. Khan, __ N.Y.S.2d __, 2011 WL 166725 (New York Supreme Court ? Appellate Division 2011)...

E-mails, ?Marital Difficulties? and the Attorney-Client Privilege

Posted on January 26, 2011
As Wikipedia explains, the attorney-client privilege is ?a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential.? And as Wikipedia notes, the attorney-client privilege is one of the oldest recognized privileges for confidential communications...

?Breach of Computer Security?

Posted on January 24, 2011
This post deals with a prosecution for ?breach of computer security? in violation of Texas law. Texas Penal Code § 33.02(a) defines the crime as follows: ?A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner...

?Sloppy ?Cut and Paste? Work?

Posted on January 21, 2011
This post deals with a rather unusual issue that was raised in a motion to suppress evidence. The motion was filed in U.S. v. Noyes, 2010 WL 5139859 (U.S. District Court for the Western District of Pennsylvania 2010).\ Jeremy Noyes is ?charged with one count each of transporting, receiving, and possessing material depicting minors engaged in sexually explicit conduct and one count of transporting obscene matter?, all in violation of federal law...

?Use of a Computer to Commit a Separate Crime?

Posted on January 19, 2011
In the course of researching a completely different issue, I came across two state statutes that create a crime I, at least, hadn?t heard of before: using a computer to commit a ?separate crime.? The states are Hawaii and Michigan...

Lawyers and Clouds

Posted on January 17, 2011
As Wikipedia notes (and I assume everyone probably knows), cloud computing is ?Internet-based-based computing, whereby shared resources, software, and information are provided to computers and other devices on demand. . . .? In a relatively recent ethics opinion, the New York State Bar Association considered whether law firms can ethically store client files online ...

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