Category Archives: criminal law principles

No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Are you sure?



We put a lot of trust in juries. We pluck every day people, with varying backgrounds and varying life experiences and education levels and skills and throw them into a courtroom where were bombard them with “evidence” and legal arguments and ask them to sift through it all and determine the “truth”, all without giving them any training or a dry run.

And then we trust in their decision, no matter how absurd or inconsistent or strange it is. And that trust – that finality – in their decision is revered, put on a pedestal and those that dare to approach it or question it are roughed up at the pointy end of a bayonet.

But sometimes things happen that made you think: do they really know what they’re doing? Are their decisions really worthy of this level of reverence? (Spoiler: the answer is yes and no.)

As I’ve said before, I’d love to know what a jury is thinking while they’re deliberating and even after they’ve deliberated. I want to have a dialogue with them, to explain why they were wrong or see what I didn’t see. But we never get that chance. We never know if the jurors went home secure in their decision, or if they had a doubt but weren’t sure if it was a reasonable doubt, because who the hell knows what that means. Given the chance, would they undo what they did?

A questioning jury

Every thinking criminal defense lawyer is, at some point every year, occupied with the idea of improving the jury trial process. Having readily concluded that the lawyer himself is not to blame and is at the peak of his abilities, the focus naturally turns to the only laymen in the room: the jurors. For once, though, the lawyer’s narcissism isn’t misplaced. The jury is, most often, the ultimate arbiter of whatever it is at dispute. Having spent thousands of hours ranting on this blog about how the system is flawed and how jurors are like black boxes and you should ELI5, I can’t pass up the opportunity to comment on something unusual that’s occurring in a high profile trial in Arizona.

Jodi Arias is someone who’s accused of doing something and for some reason the trial is getting a lot of publicity. The interesting thing, from my perspective, is the fact that Arizona seems to be a state that permits juror questioning of witnesses during criminal trials. And so Ms. Arias has spent the last few days answering over 100 questions from the jurors in her case. Much to her supposed dismay, the questions in her case seem to indicate that the jury thinks she’s full of shit.

There’s no doubt in my mind that our system is imperfect and even the jury trial itself could use improvement, but whether jurors should be permitted to ask questions of witnesses at all is a very interesting question that I’ve neglected in the past. I’ve written about proposals permitting questions, among others, and of a proposal to permit Q&A during closing arguments (which I still think is a fabulous idea), but the idea that jurors will get to ask questions of my defendant sends a shiver or two down my spine.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not. I’m the lawyer who hangs out in the courtroom after a verdict so I can talk to jurors, because I want to know why they voted one way or another, so I can learn and put it to good use next time. But that’s merely educational. Wouldn’t it be great to know what they’re thinking while the trial is going on?

This excellent article in The Jury Expert argues just that: that lawyers needs to get over their fear (and indeed they do once they’ve gone through a trial with juror question) and embrace the positives (see also the ABA’s 19 principles to improve jury practice [PDF]). Surprisingly, there is some clinical research on the impact that permitting jurors to ask questions has on trials:

Larry Heuer and Steven Penrod examined the impact of allowing jurors to take notes and ask questions in both civil and criminal trials through two experiments, one conducted in Wisconsin state courts, and the other involving both state and federal courts in 33 states. [...] They found that when jurors were allowed to ask questions, jurors felt more informed about the evidence, thought the questioning of witnesses had been thorough, and were more confident they had sufficient information to reach a verdict.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Of course, this is not a practice that should be wantonly permitted: there have to regulations on instructions, objections and what, exactly, is the standard that would permit a question to be asked. Do both parties need to consent? These are questions about implementation, not the wisdom of the practice itself.

The idea scares me because I think of the frustration mid-trial when I learn that the jury may be leaning toward convicting my client. But that eventuality exists whether I am aware of it or not. And if I am aware, I may be able to do something about it. In this instance, it might be better to kill Schroedinger’s cat.

Surprisingly, it seems Connecticut may already permit juror questions. See Spitzer v. Haims & Co., 217 Conn. 532 (1991) and see footnote 3 for the jury instruction related to juror questioning. In Spitzer, the CT Supreme Court held:

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App.3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v.Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 188, 165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors’ objectivity. People v.McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

For a lengthy list of cases discussing this issue, see footnote 8 of Spitzer. To see if your state permits it, see here. While Spitzer was a civil case, State v. Mejia seems to indicate that the practice would likely be extended to criminal trials as well (approving juror note-taking in criminal trials).

Has anyone out there tried it? I am willing to shed my steady habit for this and take juror questioning for a spin.

See also: Turkewitz’s blog.

Your rights are only worth the probable cause used to extinguish them

This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume   you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy   expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

In Georgia, public means private

Georgia: the land of misfit idiots and backward logic and a seemingly endless stream of opposite days. Georgia: a State whose official fruit is sweet to the taste but rotten to the core. Georgia: the only State to get its own category on this blog. Georgia: the State where public courtrooms apparently mean private courtrooms. At least in Massachusetts they don’t intentionally close courtrooms to the public.

Ben Hill and Crisp County operate Law Enforcement Centers [hereinafter “LECs”]. LECs contain each county’s jail and a courtroom to hold Superior Court criminal and juvenile delinquency proceedings. Pretrial detainees in the LEC jails appear in the LEC courtrooms for pretrial hearings, which include bond hearings, arraignments, calendar calls, and other criminal matters. Because many of the LEC pretrial detainees plead guilty and are sentenced at the LECs, the LEC courtrooms are often the only courtrooms they see.

Relatively speaking, the LEC courtrooms are not large. The Ben Hill County LEC courtroom has about thirty seats. The court reserves four to six seats for criminal defendants who appear before the court. A partition separates those seats from the remaining twenty-four seats. The Crisp County LEC courtroom has about twenty-five seats. Sheriff deputies place pretrial detainees in two rows of those seats, which apparently leaves about five seats available to the public.

Putting aside the problem I have with having defendants plead guilty on their dates of arraignment for a moment, this isn’t an issue of space. And even if it were, so what?

Family members and regular members of the public were apparently routinely denied access to the courtroom, despite a similar 2003 lawsuit that was dismissed because these very counties promised not to obstruct public access. And this is why consent decrees are useless.

When she arrived, a sheriff’s deputy told her she could not enter the courtroom until the judge called her grandson’s case. Ultimately, the deputy never allowed Hall to enter any of her grandson’s hearings, despite available seating.

Likewise, Plaintiff Beverly Fuqua tried, on three occasions in early 2012, to attend her son’s court appearances at the Ben Hill County LEC. Each time, the bailiff prevented her entry because her son did not plead guilty. She was not allowed to see any hearings.

On March 15, 2011, Plaintiff Joy Scales and her sister drove two and a half hours to see her nephew’s arraignment at the Crisp County LEC. After waiting in the lobby for several hours, she was prevented from watching her nephew’s hearing because he did not enter a guilty plea.

And on and on. The Counties argued that there was no formal “closure” of the courtroom and so the First Amendment was not implicated. In other words, that a court has to order the courtroom closed in order to trigger Constitutional protections. As we know from the discussion of the relevant caselaw in the Mass. post above, that’s not true. In dispensing with the Counties’ motion to dismiss, Judge Sands of the United States District Court for the Middle District of Georgia made it clear [PDF]:

It is no answer to say that there were space limitations and Defendants could not accommodate everyone. This is a motion to dismiss, so the Court takes Plaintiffs allegations as true. The complaint shows that the court and bailiffs required every member of the public to identify himself or herself and only family members were allowed in, for sole purpose of briefly watching their relatives’ guilty pleas, regardless if more seats were available. Defendants make no attempt to refute Plaintiffs’ basic allegations that no one is free to enter the LEC courtrooms without permission and that many people never successfully gain entrance.

Defendant-Judges’ argument that the First Amendment right of access requires a “court order” (Doc. 9-1 at 9) is also unpersuasive. The allegations state that the judges ordered the bailiffs to close all hearings to the public, except in limited circumstances. Superior Court officers, for example, prevented Carl Ringgold from entering the proceedings without approval from the presiding Superior Court judge. (Doc. 1 ¶ 27(f).) The fact that the judges did not explicitly put the order on the record does not absolve the alleged conduct of a First Amendment violation. Such a requirement would render the First Amendment’s right of access a mere formality.

You can get access to other documents from the Southern Center for Human Rights’ press release.

Listen, Georgia, you don’t mind if we take a look, right? I mean, after all, why would you care about open access if you had nothing to hide?

Reciprocal discovery: should we have to?

The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine.

It’s not like you knew you had that right, anyway.

We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that's what the value of your rights are. Are you guilty enough? That's the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. "Well yes, this confession was obtained illegally, but he was really guilty, so it doesn't matter" and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer's word is as good as the defendant's. 2. Except when the lawyer speaking doesn't mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries