Friday, July 22, 2016

StingRay Evidence Collected Without a Warrant Violates Fourth Amendment

Evidence gathered by a cell-site simulator that allows police to identify the location of cell phones is suppressed because it violates the Fourth Amendment's prohibition of unreasonable searches

United States v. Lambis, 2016 BL 222804, S.D.N.Y., No. 15cr734, 7/12/16.
   A federal district court suppressed evidence gathered after police used a cell-site simulator, sometimes referred to as “StingRay.” The device creates a simulated cell signal that connects with nearby cell phones, much like a cell tower. Through the device, law enforcement can collect the name and numbers of cell phones connected to the device as well as know what text messages or incoming and outgoing calls are being made. In this case, however, the StingRay was used to track the exact location of a cell phone of someone during an investigation. By calculating the strength of the single, DEA agents were able to find the location of the cell phone and its owner.
   In making this ruling, the court held that the use of the StingRay equipment used to find the defendant in his apartment was an unreasonable search because the cell phone location would not have been available otherwise. The court compared this case to the thermal-imaging device used in Kylio v. United States, where the Supreme Court found the equipment violated the Fourth Amendment. There, “the Court reasoned that distinguishing between ‘off-the-wall' observations and ‘through-the-wall surveillance' would ‘leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Like the thermal-imaging device, the StingRay is not in use by the general public, leading the court to rule that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

Vague Law Prevents Removal of Albanian Immigrant that Committed Robbery

A provision under the Immigration and Nationality Act is void because of vagueness, preventing removal of an immigrant that committed a non-armed robbery

Shuti v. Lynch, 2016 BL 217913, 6th Cir., No. 15-3835, 7/7/16.

   The Sixth Circuit joined the Seventh and Ninth Circuits in voiding a provision from the Immigration and Nationality Act (INA) for being too vague using precedent from Johnson v. United States. Under Johnson, the Supreme Court held that “violent felony” was unconstitutionally vague in the Armed Criminal Career Act (ACCA). In making this decision, the court ruled that the precedent set in Johnson could be “mixed and matched” with other statutes, making it applicable to other acts with similar language. The court held that the definition of “crime of violence” shares a resemblance to the ACCA’s “violent felony” definition, which was eventually invalidated. The order was vacated ad the case was remanded.

Prison Sentences for Egg Company Executives is Constitutional

Prison sentences handed to two egg company executives due to negligently allowing their farms to poison thousands of customers is not unconstitutional

United States v. DeCoster, 2016 BL 216013, 8th Cir., No. 15-1890, 7/6/16.

   After poisoning thousands of consumers, the Eighth Circuit ruled that prison sentences handed to two egg company executives did not violate their Eighth and Fourteenth Amendment rights. The prosecutors, under a provision of the Federal Food, Drug, and Cosmetic Act (FDCA), sought criminal penalties against the executives of two large egg companies for being negligent in creating “the conditions which gave rise to the charges against them.”

   The defendants argued that they were improperly sentenced because they did not have knowledge that their eggs contained salmonella. The court, however, responded by stating the statute does require the defendants “to have known that they violated the FDCA to be subject to the statutory penalties.” The court also rejected arguments that the sentences were disproportionate to the crime. The court held, “When defining the statutory penalties in the FDCA, Congress recognized the importance of placing the burden on corporate officers to protect consumers ‘who are wholly helpless' from purchasing adulterated food products which could make them ill.”

Class Action by Prisoners Continues, Even as Representative Prisoner is Relocated

A class action suit brought by prisoners can still stand, even if the representative prisoner is relocated because of the susceptibility of mootness for an individual claim in this case

Richarson v. Dir. Fed. Bureau of Prisons, 2106 BL 227670, 3d Cir., No. 15-2876, 7/15/16.

   The Third Circuit held that a class action suit by prisoners is still certified, even if the representative prisoner is relocated from the prison during the action. The court stated, “When individual claims for relief are acutely susceptible to mootness, a would-be class representative may, in some circumstances, continue to see class certification after losing his personal stake in the case.”

   In making this decision, the court relied on precedent from Weiss v. Regal Collections, 385 P.3d 337  (3d Cir. 2004), which provides that a claim for relief which is “susceptible to mootness” by the defending party can still stand if the representative class member has their own claim mooted.  The court found that this precedent withstood the test established by the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez, which held that “a “class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” In the case, however, the relevant corollary was that when a class action representative is denied a fair opportunity “[he] should be permitted to continue seeking class certification for some period of time after [his] claim has become moot.”

After Acquittal of Sexual Contact Crime, Court Cannot Require Sex Offender Therapy

A defendant acquitted of a sexual contact crime and convicted of a lesser battery charge cannot be required to participate in Sex Offender Therapy

Villanueva v. State, 2016 BL 217937, Fla., No. SC13-1828, 7/7/16.

   After having a sexual charge acquitted during trial, a defendant convicted on a lesser battery charge cannot be required to participate in sex offender therapy, says the Florida Supreme Court. Under Florida statute, therapy is allowed as a condition of probation only under a specific list of crimes. This list, however, did not include battery, which the court ruled prevented the trial court from imposing this condition during the defendant’s supervised release.

   The Florida Supreme Court did note that there is an exception that gives trial courts the discretion to impose sex offender therapy, even when there was no sexual crime, but only to prevent future criminal acts, which the court did not foresee as a possibility in this case. In justifying this decision, the court stated, “There is no record evidence that [the defendant] had any prior convictions. Thus, there is no indication that he has a propensity to commit any particular crime, including child molestation or sexual battery. As such, requiring [him] to attend [therapy] cannot reasonably be considered a major deterrent to any future criminality.”

Credit Access Can be Restricted During Supervised Release

A court has the discretion and can require financial updates and impose restrictions to credit on defendants convicted of non-financial crimes during their supervised release periods

United States v. Hart, 2016 BL 224440, 8th Cir., No. 15-3788, 7/13/16.

    The Eight Circuit ruled that after committing two counts of assault with a dangerous weapon and one count of assault resulting in serious bodily injury, a convicted defendant can face financial restrictions and financial monitoring by the court during supervised the release. In making this decision, the court looked at 18 U.S.C. § 3583(d), which gives courts the discretion to impose conditions of supervised release related to the original offense as well as deter similar future offenses. With this discretion, the court took note that the crimes committed by the convicted defendant stemmed from issues involving finances. Each tie The trial court’s intent was to restrict debt, which was within its discretion under the statute, the opinion stated.

   Additionally, part of his sentencing required the defendant to pay restitution, a special assessment, and to partially cover costs of his drug treatment, all things that could be compromised if he incurred debt. With these conditions, the court reserved the ability to adjust the restriction during the period of supervised release, if necessary.

Wisconsin: Risk-Prediction Software (With Conditions) Does Not Violate Due Process in Sentencing

Risk-prediction programs that utilize an algorithm to assess the possibility of recidivism do not violate due process as long as they are used with other methods to determine sentencing 

State v. Loomis, 2016 BL 224113, Wis., No. 2015AP157-CR, 7/8/16.

   The Wisconsin Supreme Court held that risk-assessment software did not violate a defendant’s due process rights during sentencing. While the court recognized some of the defendant’s claims as being legitimate, such as the potential that these programs have for disproportionately classifying minorities as risky, the court still was unwilling to scrap the existing program entirely. Instead, the court approved the continued use of the software, but only as long as it was used in conjunction with other factors in determining sentencing. Additionally, the court ordered that an advisement listing the limitations of the software be circulated to judges performing sentencing hearings.

6th Circuit: Freedom of Information Act Exemption Protects Mug Shot Disclosure

An exemption under the Freedom of Information Act that protects personal privacy also prevents booking photos from public disclosure

Detroit Free Press Inc. v. DOJ, 6th Cir. (en banc), No. 14-1670, 7/14/16.

   The Sixth Circuit reversed 20 years of precedent that allowed the public disclosure of federal booking photos because of new concerns surrounding privacy in the 21st Century. The court held that these types of photos fit within an exemption of the Freedom of Information Act (FOIA), which prevents the disclosure of information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The court, noting that the photos share “embarrassing and humiliating information,” and argued the information not only violates a person’s privacy, but that it is the exact type of information meant to be protected by the FOIA’s exemption.

   While ruling against the use of public disclosure of booking photos, the court also added that a case-by-case approach should be used to decide whether or not a booking photo disclosure is in the best interest of the public and in the purpose of the FOIA.

Lyrics Cannot be Used in Sentencing Hearing Without Having a Specific Tie to the Crime

After being convicted of federal gun crimes, a musician’s violent song lyrics could not be used against him because they were not sufficiently tied to his crime or other sentencing factors

United States v. Alvarez-Nunez, 2016 BL 219988, 1st Cir., No. 15-2127, 7/8/16.

   The First Circuit held that that the First Amendment prevented a court from using a musician’s lyrics during his sentencing hearing for gun crimes. While song lyrics can be contemplated during sentencing as extrinsic evidence, they must be directly tied to the motive or state of mind of the offender. The court elaborated, saying conduct that “has no bearing on either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes a defendant’s First Amendment rights.” While examining the song lyrics in relation to the case, the court noted that there was little evidence that connected the song lyrics to the crime.

Federal Prosecutor Guide Book Exempt from Freedom of Information Act

The Federal Criminal Discovery Blue Book, used by federal prosecutors in preparing for discover, is exempt from the FOIA due to its status as attorney work-product

N.A. of Criminal Def. Lawyers v. U.S. Dep't of Justice Exec. Office for U.S. Attorneys, 2016 BL 230755, D.C. Cir., No. 15-5051, 7/19/16

The D.C. Circuit affirmed a lower court’s ruling that the Federal Criminal Discovery Blue Book used by federal prosecutors was exempt to the Freedom of Information Act (FOIA). The lower courts held that the Blue Book was privileged attorney work-product, which is exempted from the FOIA under Exemption Five. This exemption permits the government to withhold documents that would be privileged in civil litigation.

Although the Blue Book was not created in preparation for any specific litigation, the use for general litigation and it likelihood of being used “sufficiently…warrant application of the work-product privilege.” The court further held that the strategic advice in the book was so integrated that it would be unreasonable to produce the portions of the book that are not work-product.

Password Use by Former Employee Illegal Under CFAA

The Ninth Circuit held that under the Computer Fraud and Abuse Act, the definition of unauthorized access to a computer extends to in-house fraud and data theft, not just outside systems computer hacking

United States v. Nosal, 2016 BL 214844, 9th Cir., No. 14-10275, 7/5/16.

   A former employee at a software company had is credentials revoked after resigning from his position, although he was temporarily retained for some contract work. During this period, the former employee began building his own business with the aid of several employees in the company. Through using the credentials of one such employee, he accessed information on a private server restricted to company employees, which he then used for his new business, violating the company policy and his non-compete agreement. While violating his agreement, the company, with the help of prosecutors, sought to pursue charges under the Computer Fraud and Abuse Act (CFAA) for using a password “without authorization.”

   In this decision, the Ninth Circuit extended using a computer “without authorization” to include in-house data theft and fraud in addition to computer use by outside sources. The court found that the CFAA does not define “without authorization” in terms of access to a computer for the purpose of conducting fraud, but the plain language meaning encompasses this action as well. By following the language of the statute, the court remained consistent with other previous decisions regarding the CFAA, as well as joining the Second and Fourth Circuits in reaching similar decisions.

Thursday, July 7, 2016

After Rule Change, Massachusetts Lawyers May Contact Jurors Post-Trial

After 2015 adoption of ABA Model Rule 3.5(c), attorneys in Massachusetts allowed to conduct post-verdict contact with jurors without court approval or oversight

Commonwealth v. Moore, 2016 BL 190536, Mass., No. SJC-11582, 6/16/16.

   The Massachusetts Supreme Judicial Court overturned 36 years of case law that prohibited attorneys from contacting jurors by declining to extend a common law rule after the state adopted a new ethics rule. The case stemmed from an attempt by prosecutors to prevent the defense from interviewing jurors after a high-profile murder trial ended with only a portion of the charges leading to a conviction. The motion was denied and the prosecutors appealed.

    The supreme judicial court in reviewing the motion held that the common law rule against post-verdict communications with jurors was overruled by the 2015 adoption of ABA Model Rule 3.5(c), which lifted the ban on post-verdict contact of jurors. Additionally, the court emphasized that the new rule overturned years of case law completely. “[R]ule 3.5(c) allows attorneys to initiate postverdict contact with jurors without prior court permission or oversight…does not mean, as [the state] apparently fears, that the permitted inquiry is unfettered and unrestricted.” The court noted there exist limitations within the newly adopted rule, such as the prevention of communication that is barred by law, with unwilling jurors, and involving “misrepresentation, coercion, duress or harassment.”

General Drug Trafficking Knowledge Not Enough for Probable Cause

An officer’s general knowledge about items used in drug trafficking was not enough to establish probable cause for obtaining a search warrant

United States v. Brown, 2016 BL 205724, 6th Cir., No. 13-1761, 6/27/16.

   The Sixth Circuit found that an officer’s general knowledge about drug trafficking, coupled with flawed information about the homeowner’s participation in dealing drugs, did not establish sufficient probable cause for a search warrant. Although the officer had sufficient cause to search the homeowner’s car, information collected from the car, including the address of the house, was not enough on its own to satisfy search warrant requirements. The court found “no evidence that [the homeowner] distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there.” Further in the opinion, the court continued by saying, “The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at [homeowner’s] home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence.” Without any such probable cause, the search was unreasonable.

Husband and Wife’s Extra-Marital Extortion Conviction Affirmed

A husband and wife’s conviction for extorting extra-marital lovers for money is affirmed because the circuit court deemed the state's theft-by-coercion law as not being overly broad or vague 

Roberts v. Anderson, 2016 BL 208411, 5th Cir., No. 13-50587, 6/29/16.

   The Fifth Circuit found that a theft-by-coercion law was not overly broad or vague on its face or in its application in a husband and wife extortion case. The husband, after discovering his wife’s extra-marital affairs, began to extort his wife’s lovers. Things became even more interesting when the wife began joining her husband in the extortion.  Four men who were lovers of the wife were extorted out of money, being coerced to pay into a personal charity ran by the husband that was directed to him personally.

   The court reaffirmed the state district court’s verdict, finding that the statute for theft was appropriately applied. The circuit court found that the lower court’s analysis was solid enough to trigger the Antiterrorism and Effective Death Penalty Act’s (AEDPA) deference towards state court decisions. Under the act, federal courts can only second-guess state decisions on habeas review if the decision went against or involved an unreasonable application of federal statute. By failing to meet this burden, the husband and wife duo were unable to have the state statute reviewed because the court found it to be not overly broad or vague.

Texas Trust Cannot Possess Firearms Under Federal Law

A trust under Texas law cannot possess machine guns and similar weapons because trusts are not considered separate legal entities, but fiduciary relationships which violate federal law

Hollis v. Lynch, 2016 BL 211710, 5th Cir., No. 15-10803, 6/30/16.

   A Fifth Circuit court joined the Third Circuit in holding that a trust under Texas law cannot possess weapons that are in violation of federal law. The plaintiff argues that federal statutes prevent “persons” from obtaining or passing certain weapons and because it is the trust that owns the weapons, it is exempt from this law. The court found that the "argument strains common sense and misunderstands trust law.” The court noted that in some jurisdictions, trusts have a separate legal existence, but not in Texas where the case originated. There, a trust is not a legal entity but a fiduciary relationship between the trustee and the trust property.

   Additionally, the court rejected any Second Amendment argument because the right to bear arms does not extend to “dangerous and unusual” weapons.

Prisoner’s Grievances are Protected by First Amendment

A prisoner’s letter to the warden seeking redress was protected under the First Amendment, making summary judgment against the prisoner’s civil suit against a guard premature without proper discovery procedures 

 Ogurek v. Gabor, 2016 BL 205005, 7th Cir., No. 15-1151, 6/27/16.

   The Seventh Circuit ruled that a prisoner’s petition for redress prevents summary judgment in prisoners’ grievance cases when evidence central to the case is being withheld by a government official. The prisoner plaintiff was beaten up in a prison fight and later asked the defendant to investigate the fight from surveillance footage. The defendant responded by claiming to have watched the fight, but found that the plaintiff started it. The defendant later filed a disciplinary action, which the plaintiff appealed. During the appeal, the plaintiff requested the surveillance video, but before the discovery was made, the defendant motioned for summary judgment, which the judge granted.
   The court first addressed the First Amendment issue, finding that the letter to the warden was a petition for a redress of grievances, thereby making the disciplinary action by the investigator for the complaint a violation of the plaintiff’s constitutional rights. Additionally, the court found that the trial judge erred in not allowing the discovery of the video surveillance that would have either supported the plaintiff’s claim or the defendant’s disciplinary action.

GPS Tracker Okay Even if Outside Warrant’s Geographic Limits

Information from a GPS tracker attached outside the geographic limits set by a warrant is admissible evidence

United States v. Faulkner, 2016 BL 204488, 8th Cir., No. 15-2286, 6/27/16.

   The Eight Circuit affirmed a lower court’s ruling to not suppress information gathered from a GPS tracking device used in an investigation. The GPS was used after the police obtained a warrant, but was applied outside the geographical limits set by the magistrate. It did, however, meet the other specifications of the warrant.

   The defendant argued that under Jones v. United States, a GPS tracking device that is used outside the geographic range of the warrant makes any gathered evidence inadmissible. The circuit court, in response, interpreted the Supreme Court’s decision as only the incorporation of GPS tracking devices into the Fourth Amendment’s limits on searches, not necessarily setting the parameters of warrants for such devices. The court went further, saying “[T]he technical deficiency that the warrant specified a certain county for placement of the GPS device when it was actually placed in a neighboring county….is not a Fourth Amendment violation under these circumstances.” Moreover, the court found that Jones and “its application is of limited value for [the defendant].”

Accusatory Texts Are Inadmissible Hearsay in Oregon Court

Oregon Supreme Court determines that text messages sent by victim with the assistance of the police are non-admissible hearsay

State v. Schiller-Munneman, 2016 BL 210679, Ore., No. SC-S063526, 6/30/16.

   The Oregon Supreme Court found that text messages sent by a victim of sexual assault without a response by the defendant are inadmissible evidence under Oregon’s hearsay laws. After being assaulted, the victim, with the assistance of the local police, sent text messages to the defendant asking him several questions about the assault with the intention of having him confess or admit culpability. Instead, there was no response.

   The prosecution in the case wanted to draw attention to the lack of response by the defendant to support their case against him. The court, however, found that such evidence was impermissible under Oregon law because the sent messages were not questions, but statements within the context of the situation. Additionally, the court refused to admit the texts under the “adoptive admission” exception under the hearsay rule, which would allow a no-response to be adopted as the defendant’s manifestation of his agreement to the truth of the statement. The court declined to accept this argument as well, stating the rule cannot apply because several contradictory inferences can be reasonably made from the silence.

   In addition, the court refused to answer whether the Fifth Amendment blocks prosecutors from commenting on an accused’s pre-arrest and pre-Miranda right to remain silent.

Prior Criminal History Did Not Justify the Use of a Drug Sniffing Dog During Traffic Stop

Police holding someone during a traffic stop because the driver’s prior criminal history involving drugs did not warrant the use of a drug sniffing canine that led to an eventual arrest

State v. Alvarez, Haw., 2016 BL 211663, No. SCWC-12-0000838, 6/30/16.

    The Hawaii Supreme Court found that officers lacked a reasonable suspicion to call in a drug sniffing canine during a traffic stop, even though the suspect had a prior criminal history and was currently suspected of selling drugs. The court held that the stop was still unconstitutional, even if the canine unit arrived within the time frame of writing and processing the tickets for a seatbelt infraction. Under Rodriguez v. United States, the United States Supreme Court found that there is no Fourth Amendment violation if the drug sniffing canine arrives during the normal time needed for the traffic stop. The Hawaii Supreme Court, however, did not view timeliness as the only requirement for such a search. Under the Hawaii Constitution, any unreasonable invasions of privacy, as well as unreasonable searches and seizures, are forbidden. Within this protection of privacy, the escalation of any investigation that is not supported by any other evidence of criminal activity is also forbidden.

   The court held that for the drug sniffing dog to be used, there needed to be a separate criminal inquiry into possible drug distribution. The evidence, however, was not sufficient to warrant a separate inquiry. The court held that a history of drug use and a five-day old tip on the driver’s criminal activity was not sufficient to warrant reasonable suspicion to allow for an escalated investigation. In the opinion, the court recognized that if the evidence used by police was sufficient for a separate criminal investigation, then “any traffic stop could be improperly utilized to detain individuals based on their previous misconduct.”

GPS Tracking Data Not Prohibited by Exclusionary Rule Because of Officer’s Good Faith

Evidence gathered from a GPS tracker device is admissible because it was collected before United States v. Jones, which required police to obtain a warrant for GPS tracking

United States v. Mitchell, 2016 BL 210529, 10th Cir., No. 15-3006, 6/30/16.

   The Tenth Circuit found that GPS evidence collected before the United States v. Jones decision was admissible in court. The ruling follows similar decisions from other jurisdictions, including the Fifth, Seventh, Eight, and Ninth Circuits. Only the D.C. Circuit has taken the opposite view.

   Before Jones, police did not need a warrant to collect information from a GPS tracker attached to a suspect’s car. Moreover, there was existing case law allowing the use of similar electronic tracking devices, such as electronic radio transmitters that attach to vehicles. The court recognizing the legality of the search before the Supreme Court decision stated, “[W]e think a reasonable officer could be forgiven for thinking, prior to Jones, that existing appellate precedent authorized him to install and monitor a GPS device on a private vehicle without a warrant.”

Friday, July 1, 2016

Intent a Necessary Element for Violating Rules of Conduct in Making a False Statement

The Utah Supreme Court found that sanctions placed on an attorney for making false statements lacked the necessary intent requirement for imposing the specific sanctions

   After reviewing the sanctions placed on a Utah prosecutor, the Utah Supreme Court found that he lacked the requisite intent to have violated the rules of professional conduct in making false statements. Under Rule 3.3(a)(1), a lawyer shall not “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." During the trial, the prosecutor made false statements about evidence presented to the court, but without proof of intent, he could not be in violation of the Rule 3.3.  The court found that the rule “plain meaning requires that any misstatement to be made knowingly.”

   The Supreme Court upheld the second half of his sanctions, finding that he violated Rule 3.8, which “requires a prosecutor in a criminal case to ‘make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.’” The prosecutor admitted evidence at the time of the trial, which the court concluded there was “no way to characterize the admission he made at trial as a timely disclosure under rule 3.8(d).” In defending his action, the prosecutor attempted to support his lack of timeliness under Brady because he was required to disclose any evidence, even if it was late. The court rejected this argument, noting that the Rules of Professional Conduct not only provide for a fair trial, but also establish an ethical duty that will avoid the problem in the first place.

    The six-month suspension of the prosecutor was also upheld. The court found the mitigating and aggravating factors cancelled each other out, noting that although he was less-experienced, had no prior record of sanctions, and lacked a dishonest or selfish motive, he still refused to acknowledge wrongfulness of his conduct and harm to the victim. Additionally, deference was given to the district court in issuing the suspension because of the support of the record and precedent of similar suspensions for comparable actions.

   Finally, the Office of Professional Conduct wanted to adopt a single system of sanctions where “the ultimate sanction imposed should at least be consistent with the sanction for the most serious instances of misconduct among a number of violations.“ The Supreme Court refused to adopt this standard of just one sanction for multiple violations, recognizing the difficulty that exists when a single sanction encompasses multiple violations is reviewed by appellate courts, complicating the punishment after review.

Defendant Entitled to Respond to State’s Motion to Dismiss Post-Conviction DNA Test

The Supreme Court of Utah found that a recently convicted defendant should have been allowed to file a memorandum in opposition to the State’s motion to dismiss a post-conviction DNA test

Gordon v. State, 2016 UT 11, 369 P.3d 1255.

     The Supreme Court of Utah recently clarified that the procedural due process rights of a convicted murder were violated because he could not file a memorandum in opposition to the state’s motion to dismiss his motion for a post-conviction DNA test. After being convicted of murder, the inmate petitioned to DNA test items that were not originally included in the trial. In response, the state motioned to dismiss the petition, which the court did before the petitioner could reply.
   The court found, by examining both the relevant statute and the Utah Rules of Civil Procedure, that if all of the elements are met for the specific statute in play of the petition, then the inmate had the right to supply a response motion.

    In addition, the supreme court clarified who had the burden of proof in in showing whether evidence not sought after in trail was done so because of “tactical reasons.” While the court did not rule on the merits of the issue, they clarified the rule by stating “the State has the burden of pleading that the petitioner declined to request DNA testing for tactical reasons, but that the burden of proof shifts to the petitioner to establish that he did not have tactical reasons for such failure.”

   The case was remanded so petitioner could properly respond to the motion to dismiss.

Preponderance of Evidence Standard Remains as Standard in Disciplinary Proceedings

The standard of proof in an ethics violation proceeding remains the preponderance of evidence, even when the a criminal act is the basis of the ethics violation 

In re Discipline of Steffensen, 2016 UT 18, 2016 WL 1584452.

   The Utah Supreme Court reaffirmed the standard of review used in ethics violation proceedings to be by the preponderance of evidence and not by proof beyond an unreasonable doubt. In the recent disciplinary proceeding, the attorney argued that a heightened standard of proof should be used because of the basis for his ethics violation was a criminal action. The Supreme Court, however, refused to elevate the standard because the rules “prescribe a preponderance standard for all ‘formal complaints of misconduct.’ And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of ‘criminal act’ under [the] rule.”

   In arguing for the change, the attorney claimed that there would be a due process violation without the heightened standard. The court rejected this argument because of their desire to “retain discretionary license to assure fair procedure in the cases that proceed through our justice system. But our usual course for so doing is by promulgating rules of procedure.”

   The attorney also argued that a heightened standard has more positive aspects that outweigh the negative ones. The court recognized the possible benefits as respectable, but concluding that policy reasons do not override the clear terms of an existing rule.