Wednesday, October 19, 2016

Unlisted Second Driver of Rental Car is Breaking Contract but Not Law

A driver not listed on a rental agreement is not breaking the law for using a car “without authority,” thereby not justifying the arrest of the driver, search of the car, and later, the car’s impoundment. 

Commonwealth v. Campbell, 2016 BL 324143, Mass., No. SJC-11980, 9/30/16.

The Massachusetts Supreme Judicial Court ruled that a driver not listed on a rental car’s agreement is not breaking the law for driving a car “without authority.” The court stated, “A renter's decision to allow a person who is not a permitted driver according to the rental agreement to drive a rental vehicle may be a breach of that agreement, but it does not also result in a violation of criminal law.”

It should also be noted that the court did not address whether the unlisted driver had an expectation of privacy in the rental car. This issue faces a circuit split that has been unresolved by the Supreme Court. In the Tenth Circuit, however, a driver whose name is not listed on a rental car agreement cannot challenge a police search on constitutional grounds, even when a listed driver gives the person permission to use the car.

Reversal of Death Sentence Due to the Testimony of the Victim’s Family

During sentencing, courts cannot allow relatives of a murder victim present victim-impact statements that recommend that the killer be sentenced to death, restricting earlier Supreme Court precedent.

Bosse v. Oklahoma, 2016 BL 338178, U.S., No. 15-9173, 10/11/16.

The United States Supreme Court reversed a death row inmate’s sentence because of victim-impact statements made by the family that suggested the death penalty for the convict were improper. This decision clarifies an earlier ruling from 1991 that allowed certain victim-impact statements to be used during trial, limiting the statements from directly recommending to the jury how to convict and sentence a defendant.

Online Research by a Juror Leads to Mistrial

There was a “manifest necessity” to declare a mistrial after a court learned of a juror that researched issues related to the trial on their own.

Slavick v. Sequeira, 2016 BL 314700, D. Haw., No. 15-00424 DKW-KJM, 9/23/16.

A U.S. District Court in Hawaii found that a mistrial due to a juror’s independent research of an issue related to the trial created a “manifest necessity” that would not implicate an issue of double jeopardy. The issue arose because the defendant argued that a new trial after the initial mistrial would create an issue of double jeopardy. The court rejected this argument, finding that the trial court did not “falsify” reasons for the mistrial and that there was a “manifest necessity” for a second trial. The court further expressed concern over the problems of technology during a trial, stating, “after the jury had been exposed to the extraneous information, ‘the interests of public justice would not be served by a continuation of the [trial] proceedings[,],' and that manifest necessity existed to declare a mistrial.” The opinion continued by saying, “Because the mistrial was supported by a valid determination of manifest necessity, the second trial that resulted in [the defendant’s] conviction did not violate the Double Jeopardy clause.” 

Delay in Sharing Plea Deal with Defendant is Ineffective Assistance

A lawyer provides sub-par assistance to a defendant by delaying the conveyance of a plea deal offered by the prosecution to the defendant 

Helmedach v. Comm'r of Corr., 2016 BL 308045, Conn. App. Ct., No. AC 38026, 9/27/16.

The Connecticut Appellate Court ruled that a defense attorney that delayed the conveyance of information related to a plea deal to the defendant provided constitutionally subpar assistance.  During trial, the defense attorney received information of a plea deal but withheld it from the defendant until after the defendant testified, almost two days after the attorney received news of the offer. The court rejected the argument that the defense attorney acted within reason because the deal was conveyed “promptly,” which was the applicable standard. The court, however, held that a deal does not need to be communicated immediately, but as soon as “reasonably practicable.” Even though the prosecutor was willing to hold open the offer until the defendant testified, this did not excuse the delayed communication. The court relied heavily on Missouri v. Frye, 132 S. Ct. 1399, which incorporated language from rules promulgated by the American Bar Association requiring lawyers to “promptly inform the[ir] client” of important matters in their case.

Removal of Lawyer with Family Ties Was Improper, Requiring New Trial

The defense lawyer representing an accused murderer was improperly booted from a trial because of a tenuous conflict of interest raised by the state regarding his relationship to a witness’s attorney

People v. Buckhanan, 2016 BL 318182, Ill. App. Ct., 1st Dist., No. 1-13-1097, 9/27/16.

The Illinois Appellate Court ruled that the state improperly removed a defense attorney of an accused murderer because the conflict of interest with another attorney was too tenuous. The state argued that there would be a conflict of interest during the case because the defense attorney was also the son of an attorney that was representing a witness of the prosecution. The state feared that if the relationship was disclosed, it would create the appearance of impropriety during the trial. The court, however, rejected these arguments, finding them to be only speculation and a remote possibility, warranting reversible error. It said, “Such vague and unsupported speculation is insufficient to overcome the constitutional presumption in favor of a defendant's counsel of choice.” The court also pointed to the timing of the removal, finding the decision to be suspect because the prosecution knew for two years of the relationship and still waited until three weeks before the trial to disqualify the defense attorney.

The court conceded the evidence was sufficient to convict the defendant, but they still had to reverse the conviction because the Sixth Amendment violation was a structural error, not a harmless-error that can be reviewed.

Thursday, October 6, 2016

Police Must Record Conversation Between Translator and Suspect

To gauge accuracy and provide an independent way to evaluate the translated conversation of a non-English speaking suspect, police must record conversations between the suspect and translator

Commonwealth v. Adonsoto, 2016 BL 305082, Mass., No. SJC-11978., 9/16/16.

The Massachusetts Supreme Judicial Court ruled that police must record conversations between a non-English speaking suspect and their translator. This is response to a challenge by a Hispanic woman arrested for drunk driving. During an interview with the police, a telephonic translation service was used to translate the conversation between the police and woman. The defendant argued that the translated statements were inadmissible hearsay because using the interpreter was improper because an agent of the police. Ultimately, the argument was rejected by the court because the translator had no motive to lie and the evidence indicated that the interpreter was no more than a “language conduit.” The court further stated, “along with providing a method to gauge reliability, a recording of the translation provides an independent basis to evaluate the truth of the testimony for purposes of determining the applicability of the confrontation clause.” 

After Recent Supreme Court Ruling, Crime of Violence Definition Too Vague in Immigration Law

The definition of “crime of violence”  in the Immigration and Nationality Act is deemed to be unconstitutional because it is too broad and leaves it up to interpretation by a court

Golicov v. Lynch, 2016 BL 307286, 10th Cir., No. 16-9530, 9/19/16.

The Tenth Circuit joined a circuit split in holding that “crime of violence” is unconstitutionally too broad in the Immigration and Nationality Act (INA). The court relied on reasoning supplied by the Supreme Court in its decision of Johnson v. United States, where it held that “violent felony” was too vague under the Armed Career Criminal Act. Under the INA, an immigrant may be removed if convicted of an aggravated felony, also described as a “crime of violence.” The act’s definition for “crime of violence” is a felony that “involves a substantial risk that physical force against the person or property or another may be used in the course of committing the offense.” The court found that this definition is similar to the provision invalidated by the Supreme Court because it required a judicial official to estimate the risk posed by a crime, leaving uncertainty about how much risk it takes for a crime to qualify as a violent felony.

In this decision, the Tenth Circuit joins the Sixth, Seventh, and Ninth Circuits that “crime of violence” is too vague. The government has filed a petition for certiorari in the Ninth Circuit case.

District Court is Able to Unseal Grand Jury Documents

District courts under their common law supervisory authority over a grand jury are able to unseal grand jury documents for reasons other than those found in the Federal Rules of Criminal Procedure

Carlson v. United States, 2016 BL 301445, 7th Cir., No. 15-2972, 9/15/16.

The Seventh Circuit ruled that a district court may use its supervisory authority to unseal grand jury documents under the court’s common law supervisory authority. This holding runs against the U.S. government’s stance, who argued that unsealing these documents can only be done under the Federal Rules of Criminal Procedure Rule 6(e)(3)(E). The court rejected that argument and held that Rule 6(e)(3)(E) does not limit a district court’s authority to unseal documents and that there are instances when it may be appropriate for the court to use this authority to unseal them. The ruling joins the Second, Eleventh, and D.C. Circuits in finding that Rule 6(e)(3)(E) is not exhaustive.

Individuals Do Not Have Expectation of Privacy in Historical Cellphone Location

Under the third-party doctrine, a person’s historical cell phone location is admissible in court because there is no reasonable expectation of privacy in that information

State v. Jenkins, 2016 BL 294061, Neb., No. S-14-1087, 9/9/16.

The Nebraska Supreme Court ruled that law enforcement did not violate the federal or state constitution by using the historical cell location of a woman who was arrested and later convicted. They argued, using the third party doctrine, that the woman did not have a reasonable expectation of privacy in her location because she freely conveyed that information to her phone company. The police used her location from her cell records to tie her to a double-murder crime scene.

The supreme court, following, Smith v. Maryland, found that when a customer uses their phone, they assume the risk that the company will reveal certain information under the third-party doctrine. The court stated, “Each time she sent or received a call or text message, her cellular service provider generated a record which included the date and time of the communication and the sector and cell tower sites used to route the communication.” The court found that the information became a business record, saying, “This historical CSLI was recorded and kept by the cellular service provider in the ordinary course of business.”

The court rejected the defendant’s argument that the cell phone location data should be treated like a regular GPS tracking device for purposes of the Fourth Amendment because the case did not involve “tracking” and was not conducted by the government. “The fact that the business records in Smith showed exactly where the caller was (in his home) at the time the calls were placed did not preclude the Court from applying the third-party doctrine and concluding he had no reasonable expectation of privacy in the telephone records.”

At Voir Dire, Judges Must Interview Prospective Jurors if they Ambiguously Oppose Death Penalty

If a juror provides an ambiguous answer to whether they would not impose the death penalty, the judge has the obligation to interview the candidate further to determine their view on the issue

People v. Covarrubias, 2016 BL 293182, Cal., No. S075136, 9/8/16.

The California Supreme Court held that jury candidates that are opposed to the death penalty can be removed, but if their answer is ambiguous, then the court must interview the candidate personally to clarify their stance. The case arose because of a juror that marked on a written questionnaire that he was “strongly opposed” to the death penalty and would “probably refuse” to impose it. The prosecutor successfully challenged and removed the candidate from the jury pool. The court found this to be an error, however, because the judge should not have removed him without further investigating his views, especially since the same juror said he would “probably” be able to set aside his personal beliefs in sentencing.

The trial court has the obligation to investigate any ambiguous statements made by a juror. The error, however, does not reverse the conviction but does require a reversal of the death sentence.

Police Cannot Search a Smartphone Left Unattended Without a Passcode

A person does not lose their expectation of privacy in their smartphone that is left unattended and without an access passcode

State v. Peoples, 2016 BL 296299, Ariz., No. CR-15-0301-PR, 9/12/16.

The Arizona Supreme Court found that a person’s expectation of privacy does not disappear when a smartphone is left unattended without a passcode. The court upheld a broad expectation of privacy in a personal smartphones because of the amount of personal information found on a phone. This line of reasoning follows the U.S. Supreme Court’s rationale in Riley v. California, which placed the requirement on police to obtain a warrant before searching a person’s smartphone. In their decision, the Arizona Supreme Court said, “Cell phones are intrinsically private, and the failure to password protect access to them is not an invitation for others to snoop.”

“Plain Hearing” Rule Used to Make Evidence Admissible

“Plain Hearing” Rule Used to Make Prosecutors “may” be able to admit evidence from a legal wiretap that includes conversations of people targeted conspiracy not included in the Admissible

 United States v. Carey, 2016 BL 291176, 9th Cir., No. 14-50222, 9/7/16.

The Seventh Circuit found that evidence collected from an untargeted person under a legal wiretap may be admissible under a “plain hearing” rule. The court found that the plain hearing rule was a logical corollary to the “plain-view” rule that allows police to collect evidence from things in plain sight during a legal search. The court based its decision on dicta from an earlier case where the court suggested that the plain hearing rule “is just the plain view doctrine translated from the visual to the oral dimension.”

The court cautioned, however, that this rule is not without limits. In one such example, the court noted that the police cannot collect incriminating information from people once they realize the audio being captured is unrelated to the wiretap warrant.