On Monday, January 23, 2012, the US Supreme Court strengthened an individual's right to privacy under the fourth amendment. Unanimously.
In United States v. Jones,(text of opinion) the US Supreme Court voted that it is a violation of an individual's rights to be free from unreasonable searches and seizures to have a GPS tracking device placed upon his car without a warrant.
I'm a little surprised that this decision came out unanimously. The Supreme Court has previously held that it is not a violation of an individual's 4th amendment right when the police follow that individual as he moves through public space. Under a certain rationale, I can understand why a GPS tracking device on a vehicle is the logical extension of this principal. The vehicle's movement in public is monitored by the device, rather than an officer having to follow the vehicle around wherever it goes. This argument is one for expeditious and efficient policing. As fans of 4th amendment jurisprudence are certainly aware, courts get extremely nervous when the police come up with a new tactic to make their jobs easier and more efficient. The line of how far the police can go is one in their search for efficiency is one that is constantly being moved back and forth by the courts in an attempt to ensure that the defendant's rights are being safeguarded.
The rationale used by the majority (Justices Sotomayor and Alito filed concurring opinions to Justice Scalia's majority opinion) is that an individual does retain some expectation of privacy over his movements in public spaces and that, since a trespass to the individual's property occurs with the placement of the device, the fourth amendment does provide some protection for trespass on to personal property. The court is saying that the government's warrantless intrusion in to the effect's of an individual by the placing of a GPS device is a search in an of itself.
Justice Sotomayor, in her concurring opinion, goes further than the majority does. She agrees with the majority that the trespass to Jones' property here constitutes a violation of the 4th amendment, but states aa individual retains some reasonable expectation of privacy in the totality of his movements while in public, that any particular movement may be observed, but that an individual does not surrender his expectation that he will not be constantly followed.
Justice Sotomayor is further concerned with the unchecked expansion of executive power that this would represent. Essentially the court would be allowing the executive branch to know where any individual is any any point in time, without legislative or judicial oversight.
In his concurrence (joined by Justices Breyer, Kagan and Ginsburg), Justice Alito criticizes the majority for deciding "a 21st century issue using 18th century tort law." He would have the case decided squarely within the current 4th amendment jurisprudence. Justice Alito states that long-term warrantless observation of a suspect via a GPS device is violation of that individual's reasonable expectation of privacy.
This case also represents a departure from the natural progression of tracking device cases. The government relied heavily upon a US Supreme Court case allowing the warrantless placing of a tracking device in a vat of ether being transported from Minnesota to Wisconsin. But there is a fundamental difference that the court recognizes between the tracking of a vat of ether and an individual's movement. The individual himself has a reasonable expectation of privacy that can be violated by long term surveillance of his movements, a vat of ether on a single trip across one state border is a simply a different situation.
I am a big fan of this decision. The constant give and take between police tactics and the rights of a suspect/defendant is a dynamic one. Fourth amendment law is constantly evolving as police tactics change and evolve. The issue of how technology will affect police tactics is one of extreme importance as it does not seem that technology will stop evolving, nor will possible methods of intrusion in to people's lives by technological advances. This decision is one of scope, the court simply considered the monitoring of an individual's every move over a potentially endless period of time to be too broad, regardless of whether these activities took place in public or not. I look for future cases regarding the use of technology by police to assess the scope of the possible impingement on the privacy of the individual to determine whether warrantless action will be allowed.
The 4th amendment exists to provide a protection that individual's of all political ilk can get behind. People on the left side of the aisle can support a strong 4th amendment as it protects individual privacy interests, those on the right can support a strong 4th amendment because it protects against government intrusion in to people's lives and restricts the reach of the state.
As with all posts, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
Tuesday, January 24, 2012
Wednesday, December 21, 2011
Involuntary Manslaughter, Drug-Induced Homicide and the Cocaine in the Rectum Guy
A story has been moving its way quickly around the internet this holiday season. This story comes out of North Charleston, South Carolina and involves two brothers sitting in the back of a police car. The older brother convinces his younger brother, seated next to him in the squad car, to ingest the cocaine that he has stashed, presumably to avoid detection by the officers that have arrested them, in his rectum. The younger brother eats the cocaine and, soon thereafter, dies of an overdose.
The North Charleston police department is now discussing charging the older brother with involuntary manslaughter for providing the drugs that killed his younger brother and encouraging him to eat them. What is involuntary manslaughter and would it be an appropriate charge in this case?
In Illinois, the involuntary manslaughter statutes can be found at 720 ILCS 5/9-3. This statute essentially says that any person whose acts cause the death of another, and those acts are likely to cause death or great bodily harm, is guilty of involuntary manslaughter, provided that the acts were performed recklessly.
This charge would seem to fit this situation, as the brother's act of giving the drugs to his younger brother to eat would certainly be considered likely to cause death or great bodily harm, given that the younger brother ate around an ounce of cocaine. This act also seems to fit a reckless mental state as well, as a reckless mental state generally is defined as ignoring a situation that you created through which great bodily harm or death could be caused. In Illinois, involuntary manslaughter is a class 3 felony.
I don't know if South Carolina has such a law, but in Illinois, this situation would also be subject to a so-called "Len Bias Law." A Len Bias Law is known more formally as Drug-Induced Homicide. This law can be found at 720 ILCS 5/9-3.3. This law provides an enhanced criminal penalty for anyone that "delivers" drugs that cause the death of another person. Delivery is very loosely defined when it comes to this statute. Delivery would pertain to a common retail drug sale, a person that makes drugs available at a party and potentially to a person that leaves drugs in the open where others may use them. This is a simple crime for the prosecutor to prove, as once the standard for delivery has been met, and the individual has died, there is nothing left to prove, as this is a strict liability crime. Also, in Illinois the drug-induced homicide statute is a class X felony, a crime with a far greater punishment.
If South Carolina has such a law, I wouldn't be surprised to see the brother charged with this crime. The involuntary manslaughter case is subject to the somewhat persuasive defense that the younger brother was not forced to eat the drugs given to him by his brother, whereas the Len Bias law does not have such a requirement.
Regardless of what he is charged with, it is awful to see a younger brother die out of what is essentially loyalty to his older brother.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
The North Charleston police department is now discussing charging the older brother with involuntary manslaughter for providing the drugs that killed his younger brother and encouraging him to eat them. What is involuntary manslaughter and would it be an appropriate charge in this case?
In Illinois, the involuntary manslaughter statutes can be found at 720 ILCS 5/9-3. This statute essentially says that any person whose acts cause the death of another, and those acts are likely to cause death or great bodily harm, is guilty of involuntary manslaughter, provided that the acts were performed recklessly.
This charge would seem to fit this situation, as the brother's act of giving the drugs to his younger brother to eat would certainly be considered likely to cause death or great bodily harm, given that the younger brother ate around an ounce of cocaine. This act also seems to fit a reckless mental state as well, as a reckless mental state generally is defined as ignoring a situation that you created through which great bodily harm or death could be caused. In Illinois, involuntary manslaughter is a class 3 felony.
I don't know if South Carolina has such a law, but in Illinois, this situation would also be subject to a so-called "Len Bias Law." A Len Bias Law is known more formally as Drug-Induced Homicide. This law can be found at 720 ILCS 5/9-3.3. This law provides an enhanced criminal penalty for anyone that "delivers" drugs that cause the death of another person. Delivery is very loosely defined when it comes to this statute. Delivery would pertain to a common retail drug sale, a person that makes drugs available at a party and potentially to a person that leaves drugs in the open where others may use them. This is a simple crime for the prosecutor to prove, as once the standard for delivery has been met, and the individual has died, there is nothing left to prove, as this is a strict liability crime. Also, in Illinois the drug-induced homicide statute is a class X felony, a crime with a far greater punishment.
If South Carolina has such a law, I wouldn't be surprised to see the brother charged with this crime. The involuntary manslaughter case is subject to the somewhat persuasive defense that the younger brother was not forced to eat the drugs given to him by his brother, whereas the Len Bias law does not have such a requirement.
Regardless of what he is charged with, it is awful to see a younger brother die out of what is essentially loyalty to his older brother.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
Tuesday, December 20, 2011
What Is A Preliminary Hearing? And Why Did Jerry Sandusky Waive His?
Jerry Sandusky and his legal team waived his right to a preliminary hearing last Tuesday. I was a little confused to hear that Mr. Sandusky was even afforded the right to a preliminary hearing, as he was charged by an indictment from a grand jury. In Illinois, and the federal system, if an individual is charged with a felony by a document called an information, a criminal complaint written by the police or the state's attorney, the defendant has the right to have a judge determine if probable cause exists for that individual to be charged. This is done through a process called a preliminary hearing, or prelim for short.
However, if that same individual is charged by indictment from a grand jury, a group of citizens who say that probable cause does exist, that individual does not have the right to have a judge determine if probable cause exists and no preliminary hearing will be held. This intuitively makes sense. If there has been some sort of neutral body determining if probable cause exists for the charging of the crime, then the constitutional rights of the defendant have been satisfied. What I don't understand is why any individual would be entitled to a preliminary hearing after he has been charged by indictment from a grand jury.
A preliminary hearing is usually the defendant's first chance to hear the evidence that the state will present against him. The state will call witnesses, usually just one as hearsay can be relied upon at a prelim, to lay out the state's case in a very bare bones form. Despite the fact that I don't understand why Pennsylvania grants a right to a preliminary hearing after a grand jury indictment, I really don't understand Mr. Sandusky's attorneys waiving his right to a preliminary hearing. Any statements made by the witnesses that testify at the preliminary hearing can be used later to impeach the witnesses should they offer any inconsistent testimony. This would seem to be a very important thing for Mr. Sandusky, as the statements made by his accusers will constitute most if not all of the evidence in this case.
If Mr. Sandusky is honestly going to mount a defense beyond statements in the media that "he didn't do it." I think his lawyers should have exercised his right to a preliminary hearing. There was certainly no chance the judge would find a lack of probable cause in this case, as the evidence appears very strong and the burden the state must meet, probable cause, is so low, but to mount a real defense in a case based upon statements by alleged victim's it is an absolute necessity to build a record of any statements made by those individuals to possibly impeach them in the future.
It seems that Mr. Sandusky's lawyers are determined to try this case in the media, as they keep offering statements about what he was really doing in the shower with those boys. Give it up, guys. This case cannot be won in the media. Mr. Sandusky's lawyers must realize that the best possible outcome for their client is for him to become an OJ Simpson-like figure. A man who much of the public believes committed the murders he was accused of, but that the state was not able to convict. There will be no shining moment where Mr. Sandusky walks out of the courthouse a free man that the public believes was the victim of some sinister plot. His lawyers would do well to keep their mouths shut, give deference to the legal process running its course, and save their statements for the courtroom.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
However, if that same individual is charged by indictment from a grand jury, a group of citizens who say that probable cause does exist, that individual does not have the right to have a judge determine if probable cause exists and no preliminary hearing will be held. This intuitively makes sense. If there has been some sort of neutral body determining if probable cause exists for the charging of the crime, then the constitutional rights of the defendant have been satisfied. What I don't understand is why any individual would be entitled to a preliminary hearing after he has been charged by indictment from a grand jury.
A preliminary hearing is usually the defendant's first chance to hear the evidence that the state will present against him. The state will call witnesses, usually just one as hearsay can be relied upon at a prelim, to lay out the state's case in a very bare bones form. Despite the fact that I don't understand why Pennsylvania grants a right to a preliminary hearing after a grand jury indictment, I really don't understand Mr. Sandusky's attorneys waiving his right to a preliminary hearing. Any statements made by the witnesses that testify at the preliminary hearing can be used later to impeach the witnesses should they offer any inconsistent testimony. This would seem to be a very important thing for Mr. Sandusky, as the statements made by his accusers will constitute most if not all of the evidence in this case.
If Mr. Sandusky is honestly going to mount a defense beyond statements in the media that "he didn't do it." I think his lawyers should have exercised his right to a preliminary hearing. There was certainly no chance the judge would find a lack of probable cause in this case, as the evidence appears very strong and the burden the state must meet, probable cause, is so low, but to mount a real defense in a case based upon statements by alleged victim's it is an absolute necessity to build a record of any statements made by those individuals to possibly impeach them in the future.
It seems that Mr. Sandusky's lawyers are determined to try this case in the media, as they keep offering statements about what he was really doing in the shower with those boys. Give it up, guys. This case cannot be won in the media. Mr. Sandusky's lawyers must realize that the best possible outcome for their client is for him to become an OJ Simpson-like figure. A man who much of the public believes committed the murders he was accused of, but that the state was not able to convict. There will be no shining moment where Mr. Sandusky walks out of the courthouse a free man that the public believes was the victim of some sinister plot. His lawyers would do well to keep their mouths shut, give deference to the legal process running its course, and save their statements for the courtroom.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
Tuesday, November 8, 2011
Strict Liability for Drug Induced DUI Upheld
As previously discussed on this blog, there are several ways that a person can be found guilty of DUI in Illinois. A person can be proved to be under the influence of alcohol, a person can be found to be over the legally permitted BAC of .08, or a person can be shown to have illegal drugs in their system.
This third method of proving DUI was recently addressed by the Illinois Supreme Court in People v. Martin. The facts of the case are fairly straightforward. The defendant left a bar in Peoria at 10pm on Christmas day in 2004. On his drive home he crossed the center lane and struck an oncoming car, killing both passengers. The defendant was injured and taken to the hospital where he was cited for two traffic violations. The defendant submitted himself to both blood and urine tests which showed that he had not been drinking any alcohol that evening. However, the tests demonstrated trace amounts of methamphetamine in the defendant's system.
The defendant was subsequently charged with aggravated DUI under 625 ILCS 5/11-501(d)(1)(f). This statute provides for increased penalties for certain aggravating factors such as amount of previous DUIs, extreme high BAC and particular bad acts that occur while driving while intoxicated, such as killing another person. However, the crime itself begins in the same place as a misdemeanor DUI, with a person that is either under the influence of alcohol, with a BAC of .08 or higher, or under the influence of drugs getting behind the wheel of a car.
Alcohol lends itself fairly well to prosecution for DUI, as the effects of alcohol are somewhat predictable and are easily measured by breath test devices or blood tests. At a BAC of .08 or higher, all states have determined that a person does not have the requisite reaction timing and judgment to drive a car. This is an easy thing for most people to wrap their heads around. The difficulty comes in determining whether, and to what extent, a person is affected by illegal drugs in their system. The Illinois legislature and Supreme Court have made a very easy and clear standard; any illegal drugs in your system while driving can lead to prosecution for DUI. This is a strict liability standard for drugs and driving.
The strict liability standard was challenged by the defendant in Martin as not showing a close enough nexus between impaired driving and trace amounts of drugs for the state to prove beyond a reasonable doubt that a defendant was under the influence, as required by the statute. Essentially the defendant is saying that it is impossible to tell how a person with trace amounts of methamphetamine in his system will perform when driving for their to be strict liability for crimes committed.
Essentially the Illinois Supreme Court shrugged their shoulders and said that because there is no reliable way to determine the level of impairment caused by any amount of drugs other than alcohol so the strict liability standard imposed by the legislature stands.
In the future, if reliable tests are developed to determine to what extent a person is impaired at certain concentrations of specific drugs in the bloodstream, the Illinois Supreme Court's logic could be attacked, but as for now the law in Illinois remains that even trace amounts of illegal drugs in a driver's system can be grounds for prosecution for DUI.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
This third method of proving DUI was recently addressed by the Illinois Supreme Court in People v. Martin. The facts of the case are fairly straightforward. The defendant left a bar in Peoria at 10pm on Christmas day in 2004. On his drive home he crossed the center lane and struck an oncoming car, killing both passengers. The defendant was injured and taken to the hospital where he was cited for two traffic violations. The defendant submitted himself to both blood and urine tests which showed that he had not been drinking any alcohol that evening. However, the tests demonstrated trace amounts of methamphetamine in the defendant's system.
The defendant was subsequently charged with aggravated DUI under 625 ILCS 5/11-501(d)(1)(f). This statute provides for increased penalties for certain aggravating factors such as amount of previous DUIs, extreme high BAC and particular bad acts that occur while driving while intoxicated, such as killing another person. However, the crime itself begins in the same place as a misdemeanor DUI, with a person that is either under the influence of alcohol, with a BAC of .08 or higher, or under the influence of drugs getting behind the wheel of a car.
Alcohol lends itself fairly well to prosecution for DUI, as the effects of alcohol are somewhat predictable and are easily measured by breath test devices or blood tests. At a BAC of .08 or higher, all states have determined that a person does not have the requisite reaction timing and judgment to drive a car. This is an easy thing for most people to wrap their heads around. The difficulty comes in determining whether, and to what extent, a person is affected by illegal drugs in their system. The Illinois legislature and Supreme Court have made a very easy and clear standard; any illegal drugs in your system while driving can lead to prosecution for DUI. This is a strict liability standard for drugs and driving.
The strict liability standard was challenged by the defendant in Martin as not showing a close enough nexus between impaired driving and trace amounts of drugs for the state to prove beyond a reasonable doubt that a defendant was under the influence, as required by the statute. Essentially the defendant is saying that it is impossible to tell how a person with trace amounts of methamphetamine in his system will perform when driving for their to be strict liability for crimes committed.
Essentially the Illinois Supreme Court shrugged their shoulders and said that because there is no reliable way to determine the level of impairment caused by any amount of drugs other than alcohol so the strict liability standard imposed by the legislature stands.
In the future, if reliable tests are developed to determine to what extent a person is impaired at certain concentrations of specific drugs in the bloodstream, the Illinois Supreme Court's logic could be attacked, but as for now the law in Illinois remains that even trace amounts of illegal drugs in a driver's system can be grounds for prosecution for DUI.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
Wednesday, October 26, 2011
Bail Out...No, Not That Kind - The 8th Amendment Excessive Bail Clause
The 8th amendment to the United States Constitution states "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."
Article I, Section 9 of the Illinois Constitution is a little bit more wordy, stating "all persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident of the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person."
The 8th amendment establishes the basis for any laws pertaining to bail in the federal and state systems, and Article I, Section 9 of the Illinois Constitution the basis for the law of bail in Illinois. The Illinois Constitution is, of course, subordinate to the Constitution of the United States when the two are in conflict, despite what anyone from South Carolina, or any other pro nullification activist, might say.
The bare bones test of the 8th amendment caused congress to enact a statute titled the "Bail Reform Act of 1984." The Bail Reform Act of 1984 required courts to detain individuals, without bail, that had been charged with certain serious felonies provided that the government could demonstrate by clear and convincing evidence that no release conditions could reasonably ensure the safety of other people and the community.
This act also provides arrestees with the right to request counsel, to present witnesses and to cross examine the government's witnesses. The court was to take in to consideration several things before making a bail determination, as well, like the nature of the crime committed and the potential danger posed by the arresstee, the criminal history of the arrestee and the substantiality of the government's evidence.
The Supreme Court looked at the Bail Reform Act of 1984 in its decision in U.S. v. Salerno. The court examined the statute under 5th amendment due process grounds, as well as the 8th amendment prohibition on excessive bail. The Court left us with a fairly simple maxim that leaves much room for leeway. The bail set for any individual must not be excessive in light of the perceived evil. Of course, this leaves much ground for interpretation by the court or judicial officer that is setting the bail. It is also clear that any individual has the right to procedural due process at the bail hearing stage.
Illinois has several statutes that apply to bail. First, 725 ILCS 5/110-2 encourages courts to release defendants upon their own recognizance. If the court is of the opinion that the defendant will show up to court and comply with the conditions of his bail, the court is encouraged to rely upon contempt of court proceedings to ensure people come to court, rather than upon the imposition of cash bail.
When cash bail has been imposed and the defendant fails to show up, the court can and and usually does issue a warrant for the arrest of the defendant. A defendant that is arrested or surrenders within 30 days on such a warrant must demonstrate that his failure to appear was unintentional to receive bail again, if the defendant can't do this, the court may deem him unbailable in that case.
725 ILCS 5/110-4 establishes a presumption that bail is available for all offenses, save the specific offenses listed in the body of this statute. These offenses include things like stalking, capital murder and other situations specific to the defendant like whether the defendant poses a threat to the safety of another person. 110-5 of the same statutory section establishes the factors used to determine fitness for bail and then goes on to establish criteria by which the actual amount of bail be established.
In Illinois, one thing is clear, any person charged with a crime's attorney must understand the statutes pertaining to bail, as well as the case law pertaining to excessive bail and the constitutional requirements.
As usual, nothing in this post should be construed as legal advice. For legal advice contact a criminal defense attorney in your area immediately.
Article I, Section 9 of the Illinois Constitution is a little bit more wordy, stating "all persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident of the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person."
The 8th amendment establishes the basis for any laws pertaining to bail in the federal and state systems, and Article I, Section 9 of the Illinois Constitution the basis for the law of bail in Illinois. The Illinois Constitution is, of course, subordinate to the Constitution of the United States when the two are in conflict, despite what anyone from South Carolina, or any other pro nullification activist, might say.
The bare bones test of the 8th amendment caused congress to enact a statute titled the "Bail Reform Act of 1984." The Bail Reform Act of 1984 required courts to detain individuals, without bail, that had been charged with certain serious felonies provided that the government could demonstrate by clear and convincing evidence that no release conditions could reasonably ensure the safety of other people and the community.
This act also provides arrestees with the right to request counsel, to present witnesses and to cross examine the government's witnesses. The court was to take in to consideration several things before making a bail determination, as well, like the nature of the crime committed and the potential danger posed by the arresstee, the criminal history of the arrestee and the substantiality of the government's evidence.
The Supreme Court looked at the Bail Reform Act of 1984 in its decision in U.S. v. Salerno. The court examined the statute under 5th amendment due process grounds, as well as the 8th amendment prohibition on excessive bail. The Court left us with a fairly simple maxim that leaves much room for leeway. The bail set for any individual must not be excessive in light of the perceived evil. Of course, this leaves much ground for interpretation by the court or judicial officer that is setting the bail. It is also clear that any individual has the right to procedural due process at the bail hearing stage.
Illinois has several statutes that apply to bail. First, 725 ILCS 5/110-2 encourages courts to release defendants upon their own recognizance. If the court is of the opinion that the defendant will show up to court and comply with the conditions of his bail, the court is encouraged to rely upon contempt of court proceedings to ensure people come to court, rather than upon the imposition of cash bail.
When cash bail has been imposed and the defendant fails to show up, the court can and and usually does issue a warrant for the arrest of the defendant. A defendant that is arrested or surrenders within 30 days on such a warrant must demonstrate that his failure to appear was unintentional to receive bail again, if the defendant can't do this, the court may deem him unbailable in that case.
725 ILCS 5/110-4 establishes a presumption that bail is available for all offenses, save the specific offenses listed in the body of this statute. These offenses include things like stalking, capital murder and other situations specific to the defendant like whether the defendant poses a threat to the safety of another person. 110-5 of the same statutory section establishes the factors used to determine fitness for bail and then goes on to establish criteria by which the actual amount of bail be established.
In Illinois, one thing is clear, any person charged with a crime's attorney must understand the statutes pertaining to bail, as well as the case law pertaining to excessive bail and the constitutional requirements.
As usual, nothing in this post should be construed as legal advice. For legal advice contact a criminal defense attorney in your area immediately.
Thursday, October 13, 2011
The Silent Witness Theory - People v. Taylor
In a decision handed down on October 6, 2011, the Illinois Supreme Court clarified a doctrine known as the "silent witness theory."
In this case, the defendant was a night watchmen at Deerfield High School in Lake County, Illinois. The defendant was convicted of stealing some items from the high school while he was on duty. The state's principal evidence in its prosecution was a video recording from a motion-activated video camera installed in the high school. This camera caught the defendant in the act of taking the property.
The problem with such evidence, photographs or videos that do not have a person that took the photograph or video to authenticate it, is that the evidentiary foundation required for a photo or video to be entered in to evidence is that the person that took the photo or video would need to testify as to what exactly the photo or video represents and when it was taken.
As the video camera in this case was a motion activated camera that was installed in a high school, there is no person that may provide the required foundation for the video to be placed in to evidence at trial.
In this case, the state sought to admit the video utilizing the so-called "silent witness theory". This theory allows video or photographs taken by automated processes to be admitted without the testimony of the individual that recorded it, provided an individual can testify to the reliability of the process that created the image.
The Illinois Court of Appeals found this tape to be inadmissible, holding that the state failed to lay adequate foundation for the reliability of the process used to transfer from the video camera's DVR to the method in which it was displayed in the court room.
It seems that every state has its own test to determine the foundational requirements for the admissibility of silent witness items, but they all seem to primarily focus on a witness establishing the reliability of the equipment, the reliability of the transfer of digital data to some form of viewable media, and the likelihood that the finished images or video have not been tampered with or chain of custody.
The Illinois Supreme Court goes on to adopt a totality of circumstance test where the ultimate determination that must be made by a court is whether the recording is both accurate and reliable. There are factors that may be considered to make the above determination, but there is no set list of formalistic factors that a court must consider to make the required determination. A trial court may consider "(1) the device's capability for recording and general reliability; (2) competency of the operator; (3) proper operation of the device; (4) showing the manner in which the recording was preserved; (5) identification of the persons, locale, or objects depicted; (6) explanation of any copying or duplicating process."
The Supreme Court found the tape admissible, as they considered it accurate and reliable, and overturned the appellate court.
As always, nothing in this blog should be considered legal advice. For legal advice, contact a criminal defense attorney in your area.
In this case, the defendant was a night watchmen at Deerfield High School in Lake County, Illinois. The defendant was convicted of stealing some items from the high school while he was on duty. The state's principal evidence in its prosecution was a video recording from a motion-activated video camera installed in the high school. This camera caught the defendant in the act of taking the property.
The problem with such evidence, photographs or videos that do not have a person that took the photograph or video to authenticate it, is that the evidentiary foundation required for a photo or video to be entered in to evidence is that the person that took the photo or video would need to testify as to what exactly the photo or video represents and when it was taken.
As the video camera in this case was a motion activated camera that was installed in a high school, there is no person that may provide the required foundation for the video to be placed in to evidence at trial.
In this case, the state sought to admit the video utilizing the so-called "silent witness theory". This theory allows video or photographs taken by automated processes to be admitted without the testimony of the individual that recorded it, provided an individual can testify to the reliability of the process that created the image.
The Illinois Court of Appeals found this tape to be inadmissible, holding that the state failed to lay adequate foundation for the reliability of the process used to transfer from the video camera's DVR to the method in which it was displayed in the court room.
It seems that every state has its own test to determine the foundational requirements for the admissibility of silent witness items, but they all seem to primarily focus on a witness establishing the reliability of the equipment, the reliability of the transfer of digital data to some form of viewable media, and the likelihood that the finished images or video have not been tampered with or chain of custody.
The Illinois Supreme Court goes on to adopt a totality of circumstance test where the ultimate determination that must be made by a court is whether the recording is both accurate and reliable. There are factors that may be considered to make the above determination, but there is no set list of formalistic factors that a court must consider to make the required determination. A trial court may consider "(1) the device's capability for recording and general reliability; (2) competency of the operator; (3) proper operation of the device; (4) showing the manner in which the recording was preserved; (5) identification of the persons, locale, or objects depicted; (6) explanation of any copying or duplicating process."
The Supreme Court found the tape admissible, as they considered it accurate and reliable, and overturned the appellate court.
As always, nothing in this blog should be considered legal advice. For legal advice, contact a criminal defense attorney in your area.
Tuesday, October 4, 2011
The Right to Counsel - Who Can Invoke and When?
One of the rights provided by the both the Illinois and US Constitutions is the right to an attorney. Defendants have the right to counsel for a charge that actually resulted in a sentence to jail time (I know it sounds strange) and defendants have the right to counsel to be present for any custodial interrogation, provided that the right to counsel has been invoked.
The first situation has resulted in most states enacting a right to counsel for anyone that cannot afford his or her own attorney for all felonies and misdemeanors. This policy makes sense, as a policy that looks backwards at a case that has been completed to ask whether that convicted person was entitled to a lawyer is a colossal waste of judicial and prosecutorial resources, as the state would be forced to do the case over again if the defendant was sentenced to time in jail.
The second situation is far more interesting and the subject of much more case law.
Most people know about Miranda rights and the requirement that they be read to the suspect before any custodial interrogation. If the suspect chooses to exercise his right to have his attorney be present for any interrogation, the police must stop the questioning at that moment, unless the defendant chooses to re-initiate talks with the police on his own. Despite this relatively clear maxim, some questions remain. Can the suspect invoke his right to counsel before he has been taken in to custody? Can a family member or a third party invoke this person's right to counsel? What if the suspect is a minor, can his parents invoke his right to counsel then? What if his attorney is already present and wants to invoke the suspect's right to counsel? Does the court appointing an attorney for the defendant equate to an invocation of the right to counsel for the fifth amendment right under Miranda (rather than the 6th amendment right to trial counsel)?
In McNeil v. Wisconsin, the US Supreme Court stated ""in order to invoke the Miranda interest, there must be at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction[.]" In People v. Villalobos, a defendant filed a document with the court during his bond hearing that stated that he would not participate in any custodial interrogation without his attorney being present. The Illinois Supreme Court stated that the McNeil rule applied to this situation as well.
Simply put, McNeil stands for the proposition that a 5th amendment Miranda right must be invoked in response to Miranda rights at the beginning of an attempted custodial interrogation. Simply making a blanket invocation of the fifth amendment right to counsel is not effective. A defendant must invoke his right upon the inception of custodial interrogation. The reasoning for this is illuminated in footnote 3 of the McNeil decision. The Court stated "[m]ost rights must be asserted when the government seeks to take the action they protect against." Logically, this makes sense. Could a person take out an ad in the paper saying "I invoke my fifth amendment right to counsel upon any attempted custodial interrogation?" Would the police be expected to know that this defendant had invoked his right?
Its important to keep distinct constitutional rights clear, as well. The sixth amendment right to counsel is a different one than the fifth amendment right to counsel. The sixth amendment right provides any defendant a right to counsel at trial, and the fifth amendment right provides a defendant the right to have an attorney present for any custodial interrogation. Courts have routinely held that an invocation of the sixth amendment to counsel is not the same as an invocation of the fifth amendment right to have counsel present at any interrogation. On this issue, the devil is in the details. Once a defendant has been charged and an attorney has been appointed to represent him, the police may not speak to him about the case for which he has been charged outside the presence of counsel. This right is called a Massiah right, coming from Massiah v. US and the sixth amendment. However, if the defendant has not been charged, but has retained an attorney in anticipation of being charged, he must still invoke his 5th amendment right to counsel at the inception of any custodial interrogation, despite the fact that he has an attorney.
The final question is to who can invoke the right to counsel on the defendant's behalf. The simple answer is that the defendant must invoke his right on his own behalf and no one else can do it for him. The answer, as to the Illinois state constitution is a little different, however. In a rare departure from lockstep interpretation with the federal constitution, the Illinois Supreme Court has determined that when a lawyer appears at a police station to represent the subject of custodial interrogation, the police must inform the suspect that the attorney is present. The attorney may not invoke the right to counsel on his client's behalf, but the suspect has the right to learn of the presence of his attorney and to then speak with the attorney.
With all of these scenarios one thing rings true: an unequivocal invocation of the right to counsel as the inception of custodial interrogation remains any suspect's best line of defense.
As always, nothing in this blog should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
The first situation has resulted in most states enacting a right to counsel for anyone that cannot afford his or her own attorney for all felonies and misdemeanors. This policy makes sense, as a policy that looks backwards at a case that has been completed to ask whether that convicted person was entitled to a lawyer is a colossal waste of judicial and prosecutorial resources, as the state would be forced to do the case over again if the defendant was sentenced to time in jail.
The second situation is far more interesting and the subject of much more case law.
Most people know about Miranda rights and the requirement that they be read to the suspect before any custodial interrogation. If the suspect chooses to exercise his right to have his attorney be present for any interrogation, the police must stop the questioning at that moment, unless the defendant chooses to re-initiate talks with the police on his own. Despite this relatively clear maxim, some questions remain. Can the suspect invoke his right to counsel before he has been taken in to custody? Can a family member or a third party invoke this person's right to counsel? What if the suspect is a minor, can his parents invoke his right to counsel then? What if his attorney is already present and wants to invoke the suspect's right to counsel? Does the court appointing an attorney for the defendant equate to an invocation of the right to counsel for the fifth amendment right under Miranda (rather than the 6th amendment right to trial counsel)?
In McNeil v. Wisconsin, the US Supreme Court stated ""in order to invoke the Miranda interest, there must be at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction[.]" In People v. Villalobos, a defendant filed a document with the court during his bond hearing that stated that he would not participate in any custodial interrogation without his attorney being present. The Illinois Supreme Court stated that the McNeil rule applied to this situation as well.
Simply put, McNeil stands for the proposition that a 5th amendment Miranda right must be invoked in response to Miranda rights at the beginning of an attempted custodial interrogation. Simply making a blanket invocation of the fifth amendment right to counsel is not effective. A defendant must invoke his right upon the inception of custodial interrogation. The reasoning for this is illuminated in footnote 3 of the McNeil decision. The Court stated "[m]ost rights must be asserted when the government seeks to take the action they protect against." Logically, this makes sense. Could a person take out an ad in the paper saying "I invoke my fifth amendment right to counsel upon any attempted custodial interrogation?" Would the police be expected to know that this defendant had invoked his right?
Its important to keep distinct constitutional rights clear, as well. The sixth amendment right to counsel is a different one than the fifth amendment right to counsel. The sixth amendment right provides any defendant a right to counsel at trial, and the fifth amendment right provides a defendant the right to have an attorney present for any custodial interrogation. Courts have routinely held that an invocation of the sixth amendment to counsel is not the same as an invocation of the fifth amendment right to have counsel present at any interrogation. On this issue, the devil is in the details. Once a defendant has been charged and an attorney has been appointed to represent him, the police may not speak to him about the case for which he has been charged outside the presence of counsel. This right is called a Massiah right, coming from Massiah v. US and the sixth amendment. However, if the defendant has not been charged, but has retained an attorney in anticipation of being charged, he must still invoke his 5th amendment right to counsel at the inception of any custodial interrogation, despite the fact that he has an attorney.
The final question is to who can invoke the right to counsel on the defendant's behalf. The simple answer is that the defendant must invoke his right on his own behalf and no one else can do it for him. The answer, as to the Illinois state constitution is a little different, however. In a rare departure from lockstep interpretation with the federal constitution, the Illinois Supreme Court has determined that when a lawyer appears at a police station to represent the subject of custodial interrogation, the police must inform the suspect that the attorney is present. The attorney may not invoke the right to counsel on his client's behalf, but the suspect has the right to learn of the presence of his attorney and to then speak with the attorney.
With all of these scenarios one thing rings true: an unequivocal invocation of the right to counsel as the inception of custodial interrogation remains any suspect's best line of defense.
As always, nothing in this blog should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.
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