Non "Testimonial" Statements

A teacher's hearsay testimony about abuse accusations was allowed to be presented without cross-examination.

 

 

 

Ohio v. Clark, U.S., No. 13-1352

 

 

 

 

 

 

     The teacher's testimony in this child abuse case were allowed because the child's responses to their questions were not seen as "testimonial" under the confrontation framework and cross-examination requirements updated in Crawford v. Washington, 541 U.S. 36 (2004).

  
     Justice Alito stated that "[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers." The Court indicated that this was true even when it was a private party who had an obligation to report (because of a statutory obligation) indications of child abuse to law enforcement.

   
    The teacher's aim was to protect the child, and there was "no indication that the primary purpose of the conversation was to gather evidence for Clark's prosecution." The Court went on to say that       "[l]ike all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse."

 
    The Court said that "[M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution."

    
   The Court stated that they do not adopt a categorical rule because "at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns.... Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers."












   For now, there is a general rule that statements made to non-law enforcement personnel do not qualify as "testimonial" for purposes of the confrontation clause's cross-examination requirement.



http://www2.bloomberglaw.com/public/desktop/document/Ohio_v_Clark_No_131352_2015_BL_193921_US_June_18_2015_Court_Opini

SCOTUS Unclear on How Knowledge Can Be Shown in Bath Salts Case

The Supreme Court indicated that the state needed to show that the defendant knew the substances were illegal, but did not explain how.

 

McFadden v. United States, 2015 BL 193525, U.S., No. 14-378

 

 

      The U.S. Supreme Court held that in prosecutions involving substances analagous to controlled substances (i.e. bath salts), the government must prove that the defendant knew that they were dealing with a substance regulated under federal drug laws.

 

      Justice Thomas's majority opinion indicated two ways in which the knowledge requirement can be met: First, by evidence that the defendant knew the substance is controlled under the CSA or CSAEA, regardless of whether they knew the substance's identity; or by evidence that the defendant knew the specific analogue they were distributing, even if theyh did not know it's legal status as a controlled substance analogue.

 

     Though a confusing standard, the Court gave two examples of how the above standards can be met: There could be a defendant "whose role in a larger drug organization is to distribute white powder to customers... may know that the white powder is listed on the schedules even if he does not know precisely what substance is." Or there could be a defendant who "knows he is distributing heroin but does not know that heroin is listen on the schedules" would be found guilty because "ignorance of the law is typically no defense to criminal prosecution."

 

     It is important to note that Section 802(32)(A) defines controlled substance analogues by their "features" including "stimulant, depressant or hallucinogenic effect" when it is "substantially similar to or greater" than effects of a schedule I substance. The Court went on to say that "[a] defendant who possesses a substance with knowledge of those features knows all the facts that make his conduct illegal." The Court indicated that the "feature" that defendants need to be aware of "is the fact that it is 'controlled.'"

 

     The case was remanded to the 4th Circuit to determine if erroneous jury instructions, about the knowledge of the defenant, were a harmless error. This case does not indicate much until that has been determined.

Excessive Force in Pretrail Detention

KINGSLEY v. HENDRICKSON ET AL.

The U.S. Supreme Court ruled that in order for a claim of excessive force made by a pretrial detainee against a corrections officer to prevail under 42 U.S.C. § 1983, it needs to show only that the force used was objectively unreasonable.

The Court rejected the government’s argument that corrections officers could only be held liable if they were subjectively aware that their use of force was unreasonable. The Court ruled that the test is one of objectivity, as an objective test is consistent with precedent and more workable than the subjective test.

The Court stated that an objective test “is consistent with the pattern jury instructions used in several Circuits, and many facilities train officers to interact with detainees as if the officers' conduct is subject to objective reasonableness,” and that “the use of an objective standard adequately protects an officer who acts in good faith, e.g., by acknowledging that judging the reasonableness of the force used from the perspective and with the knowledge of the defendant officer is an appropriate part of the analysis.”

This determination will be made from the perspective of “a reasonable officer on the scene, including what the officer knew at the time.” See Graham v. Connor, 490 U.S. 386 , 396. The determination must also consider the “legitimate interests [stemming from the government’s] need to manage the facility in which the individual is detained.”

http://www2.bloomberglaw.com/public/desktop/document/Kingsley_v_Hendrickson_No_146368_US_June_22_2015_Court_Opinion

Search Law Deemed Facially Unconstitutional

City of Los Angeles, California v. Patel et al

The U.S. Supreme Court held that L.A. hotel owners have a right to refuse to show their registries to the police when the police do not have a subpoena. L.A. Municipal Code §41.49 was determined to be facially unconstitutional under the Fourth Amendment. Because it falls within the administrative search exception to the Fourth Amendment, officers can still issues subpoenas for the hotel registries without needing probable cause.

The court emphasized that facial challenges are not procedurally barred categorically or “especially disfavored” even if they are rare. This allows for a challenge of the enforcement of this law, or other “patently unconstitutional” laws without having to wait for a set of facts to present itself. Or, one can challenge this law based on its unconstitutionality before the law is brought to bear against a party. When a facial challenge to a law is brought, “the proper focus is on searches that the law actually authorizes and not those that could proceed irrespective of whether they are authorized by the statute…” The focus of the Court is on what the law authorizes, and not what could happen without the law, or what happened in a specific case.

The Supreme Court’s decision also indicated that hotels are not a “closely regulated” industry, which would apply a more relaxed Fourth Amendment standard. The Court indicated that such a generally applicable law cannot make such a broad spectrum of business a “closely regulated” industry.

Because these searches were done without subpoenas they were “conducted outside the judicial process” and “are per se unreasonable under the Fourth Amendment-subject only to a few… exceptions.” Arizona v. Gant, 556 U.S. 332 , 338. One of those exceptions is for administrative searches, but even under that exception the subject is guaranteed an opportunity to obtain precompliance review.

Section 41.49 is constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because doesn’t constrain police officer’s discretion regarding which hotels to search and under what circumstances. No standard is given in 41.49 to control the acts of the police officers under this exception.

http://www2.bloomberglaw.com/public/desktop/document/City_of_Los_Angeles_v_Patel_No_131175_US_June_22_2015_Court_Opini

State v. Taylor - Is Securities Fraud a Continuing Offense?

The crime of securities fraud is complete when an "offer, sale, or purchase is made...."

State v. Taylor

      Roger Taylor was charged with multiple counts of securities fraud and theft on the basis of his alleged operation of a Ponzi scheme. The district court concluded that securities fraud and theft are continuing offenses and evaluated the timeliness of the charges with regard to the statute of limitations of that offense.

I. THE TEST FOR CONTINUING OFFENSES

      The time limit for prosecuting a crime starts the moment that "every element of the offense is met." The legislature has created some crimes in such a way that a perpetrator continues to commit the offense for as long as the elements are satisfied.

     

     The first step to see if a crime can be offended continuously is to look to the congressional intent. Criminal statutes should not be interpreted to create a continuing offense “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397 U.S. 112, at 115 (1970).

   

II. SECURITIES FRAUD IS NOT A CONTINUING OFFENSE

     The Court held that securities fraud, in violation of Utah Code section 61-1-1, is not a continuing offense. Instead, the crime of securities fraud is complete and the statute of limitations begins to run when an “offer, sale, or purchase” is made “in connection with” an activity specified in subsections (1) through (3).

     The Court looked to the text of the statute, and they determine that the offense is "anchored in the discrete events of an 'offer, sale, or purchase of any security." The Court looks at US Supreme Court decisions on similar statutes holding that they were not continuing violations. The Court also looks to similar Utah statutes that have been determined to not be continuing offenses as well as the fact that a defendant may be charged with a "pattern of criminal activity" lessening the need for this crime to be a continuing violation.

http://www.utcourts.gov/opinions/supopin/State%20v.%20Taylor20150331.pdf