Technological Advances Does Not Lower Defendant’s Proof of Prejudice Standard

Even if privileged computer files are improperly accessed by the government, the defendant still needs to show that the access prejudiced them by proving that the material was used during the case

United States v. DeLuca, 2016 BL 354269, 11th Cir., No. 15-12033, 10/25/16.

The Eleventh Circuit ruled that the defendant must show they were prejudiced when privileged information is improperly turned over to a prosecutor, even when the files are electronic. The issue was created during an investigation by a “filter team” during a financial fraud investigation that improperly sent attorney-client communications to the prosecutors involved in the case. The defendant argued that he should not need to prove prejudice because computer files make it impossible to identify what has been opened or been seen by prosecutors, whereas it is easier to determine what paper files were seen or used by a prosecutor in preparing their case. The defendant further argued that a new standard should be used for electronic files because “[t]he rules that were reasonable in a world run on paper are not suitable to the electronic age.”

The circuit court, however, rejected this argument. It refused to lower the standard of proof for high-tech violations of an attorney-client privilege, stating “Even accepting his contention that technological changes have made accessing privileged communications easier than it used to be in an age of paper records, it does not clearly follow that showing prejudice is more difficult than it used to be.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_DeLuca_No_1512033_NoNonArgume_Calendar_2016_BL_35?1478716727

Unjustified Shackling of Defendant Does Not Undermine Fair Trial

A defendant has the burden to prove prejudice by showing that the jury saw their shackles when they were unjustifiably shackled during trial.

State v. Brawley, 2016 BL 179698, S.C., No. SC 19441, 6/14/16.

   The Connecticut Supreme Court ruled that a defendant must show that the jury saw his shackles during trial to establish prejudice during the trial, even if the shackling was unjustified. The defendant, although charged with multiple violent crimes, was not a flight risk or subject to behavioral issues that posed a danger, not necessitating shackles.

   The defendant argued that the State had the obligation to prove that the jury did not see the shackles because the record was silent on the issue, but the court disagreed. The court noted the practice of the judge in placing a curtain around the defense table so the jury cannot see the prisoner’s legs in addition to having the defendant seated before the jury leaves or enters the courtroom favored the state in that the burden is placed on the defendant.

http://www.bloomberglaw.com/public/document/State_v_Brawley_No_SC_19441_2016_BL_179698_Conn_June_14_2016_Cour.

Burden to Demonstrate Prejudice

In an unpreserved federal constitutional claim the burden of demonstrating prejudice rests with the defendant on appeal.

 

State of Utah v. Bond, 2015 UT 89

     Martin Bond was convicted by a jury of various heinous crimes "including aggravated kidnapping and aggravated murder." He appealed these convictions on various grounds. First, on the basis of prosecutorial misconduct, because the prosecutor called a codefendant Mr. Rettig to testify after Mr. Rettig had indicated that he was invoke his Fifth Amendment privilege. He also posited that the prosecutor violated his Confrontation Clause rights by using leading questions. He also contends that his lawyers were ineffective for failing to merge the conviction for aggravated kidnapping with the conviction for aggravated murder.

     The convictions were confirmed because Mr. Bond failed to establish that the trial court abused its discretion, or that the prosecutor committed misconduct. He also did not demonstrate prejudice or that his counsel performed deficiently by making a "futile motion."

     Regarding the Confrontation Clause argument, the court cleared up previous confusion in case law and "expressly h[e]ld that the burden of demonstrating prejudice for an unpreserved federal constitutional claim rests with the defendant on appeal." Mr. Bond did not meet this burden because he failed to demonstrate prejudice from the prosecutor's leading questions.

http://www.utcourts.gov/opinions/supopin/State%20v.%20Bond20150930.pdf