Sacramento Criminal Defense Lawyer Blog

The number of California prison inmates possessing cell phones has increased dramatically in recent years, with prison officials confiscating 7,284 phones in the first half of this year compared with 261 in all of 2006. As of this date, while it is a violation of prison regulations for prisoners to have cell phones, it is not illegal. A state senate bill sponsored by Sen. Alex Padilla would change this, imposing a loss of 180 early release credits for any prisoner found to possess a cell phone. In addition, the bill would make it a misdemeanor for anyone to smuggle a cell phone to a prisoner.

A related issue is the increased frequency with which inmates are maintaining Facebook accounts from prison. Apparently, cell phones are used to update Facebook accounts that the prisoners had before they were convicted, create new accounts, and to view pages of other people's Facebook accounts.

According to Facebook policy, inmates who had Facebook accounts before they went to prison may keep those accounts. However, they may not update the preexisting accounts, create new accounts, or have people outside of prison create or update accounts for them. The California Department of Corrections and Rehabilitation (CDCR) shares information with the Facebook Security Department, which can disable accounts found to be in violation of Facebook policies.

The U.S. Supreme Court has ruled that when a juvenile is a suspect in a police investigation, law enforcement must take into account the child's age when determining whether he is "in custody" and thus must be given a Miranda warning.

This decision concerns a North Carolina 13-year old (J.D.B.) who was suspected of being involved in break-ins at two homes. A police investigator came to the suspect's school, had him pulled from class, and then questioned him for 30-minutes. The investigator did not give him a Miranda warning, allow him to call his guardian, or tell him that he was free to leave. After initially denying involvement in the crimes, J.D.B. finally confessed after he was told he faced juvenile detention. It was only AFTER this admission of guilt that the investigator said J.D.B. was free to leave if he wished and could refuse to answer questions. J.D.B. nonetheless went on to provide additional information about the crimes, including a written statement. He was subsequently found delinquent of breaking and entering and larceny. This judgement was upheld by the North Carolina Court of Appeals and State Supreme Court.

The U.S. Supreme Court ruled that the state courts were in error in not allowing the defendant's age to be a factor in determining whether police had correctly applied the rules concerning a Miranda warning. The Court said that a juvenile's age must be considered when deciding whether a person understands his/her rights while interacting with law enforcement. It is not appropriate, said the Court, for the standard to be how a reasonable adult would act. According to the Court, it is not unreasonable to think that a 13-year old in a school setting, surrounded by school officials and law enforcement, would not understand that he could refuse to answer questions and demand to be "set free."

This is an important decision because it highlights the power wielded by law enforcement and how it must be tempered with reasonable rules that protect individual's rights. For example, in this case, J.D.B.'s age clearly had an impact on how he interacted with the police officer. In a school setting where he is under the control of adult authority figures (teachers and administrators), how does he demand to be "set free"? Where does he go if the questioning ceases? Would he be allowed to call his guardian? Does he even understand he has the right to not answer questions after he has been told by school officials to tell the truth? The Supreme Court has made a common sense decision by saying that someone's age must be a factor in issues of police custody and Miranda warnings.

It should be noted that the Court did not give specific guidelines regarding how age factors into questioning by police. It only said that is should be a factor for courts to consider. This particular case was sent back down to the North Carolina courts for review in light of the Court's decision.

J.D.B. v. North Carolina

A California appellate court (First District, Division Two) has issued a ruling that invalidates collection of DNA samples from people who have been merely arrested. The decision pertains to Proposition 69, passed by California voters in November 2004, authorizing expansion of the circumstances under which law enforcement could collect DNA samples. Though the court's ruling affects cases in its Bay Area district, it does provide case law that defense attorneys can refer to when similar issues arise here in Sacramento.

Much of the court's analysis focuses on the vast amounts of information that can be obtained from DNA analysis. According to the court, DNA samples are different than fingerprints because fingerprints can only be used for identification. DNA samples, in contrast, reveal vast quantities of personal data, including heredity and disposition to disease. And the scope of this information will only expand as DNA analysis and research progresses in coming years.

Because of this, the court declared, people have a right to privacy that government can breach only under limited circumstances. And merely being arrested doesn't pass the test. Collection of DNA samples from arrestees constitutes an unreasonable search in violation of the Fourth Amendment to the Constitution, a "warrantless and suspicion less" search not supported by previous rulings in state and federal courts.

The Attorney General's Office had argued in defense of the law that collection of DNA samples from arrestees is a valuable tool in fighting crime. The court, however, said that no matter how effective, the law is still an unconstitutional invasion of privacy.

It's important to note that this decision changes nothing about collection of DNA from people convicted of specific crimes, as delineated by various California laws. It only pertains to the collection of DNA from people who have been merely arrested.

Governor Jerry Brown last week signed into law AB 141, which clarifies instructions to jurors about communicating with people not involved with the trial, as well as conducting research outside the trial.

Specifically, the new law, which takes effect January 1, 2012, deals with electronic communication - tweets, texts, email, and other social media - and electronic research - for example, relevant news stories found using a Google search.

This clarification has become necessary with the growth of the internet and the prevalence of smart phones and other wireless devices. Jurors can have access to crime scene descriptions and photos, defendants' criminal records, statements by witnesses, and other information related to the case.

The problem is that jurors are supposed to consider only the information presented to them in the courtroom, and are to discuss that information only with other jurors. The goal of the new law is to ensure that all members of a jury consider only the body of information presented by prosecution and defense attorneys, and that their decisions are not tainted by the opinions of friends, family members, or other people outside the trial.

Jurors who violate the new law can be charged with a misdemeanor.

The California Supreme Court has ruled that faxed copies may be admitted as evidence at trial under certain circumstances.

The ruling stems from the case of Danny Skiles, who was found guilty in 2007 of burglary and receiving stolen property. Separate from the jury trial on these charges, a court trial was held to determine whether a prior conviction in Alabama should be counted as a serious felony under California's three-strikes law. Certified copies of court documents from the Alabama conviction were introduced by the prosecution and deemed admissible as evidence. None of these documents, however, had a description of the manslaughter charge to which the defendant pled guilty. This description was needed to determine whether the defendant had inflicted great bodily injury. During a recess, the prosecuting attorney obtained a faxed copy of the needed document, which was submitted as evidence when the court trial resumed. The defendant's attorney objected that the document should not be admitted because it was a photocopy. The court overruled this objection and the description of the Alabama conviction was used to establish it as a strike. As a second strike offender, Skiles was sentenced to nine years in state prison.

It's important to note that the Supreme Court said that a faxed copy on its own would not qualify as admissible evidence. A faxed document qualifies under secondary evidence rules when its authenticity can be verified by other documents that have already been admitted into evidence. In Skiles case, the certified documents from the Alabama case could be used to verify the authenticity of the fax, which had the same certification stamp and court clerk signature as the previously certified documents.

People v. Skiles