Sacramento Criminal Defense Lawyer Blog

The First Appellate Court of California last week issued a decision that should be heeded by any person facing criminal charges and considering a police offer to reduce or dismiss those charges in exchange for cooperation in an investigation. In short, the court said that only the district attorney has the authority to reduce or dismiss charges. Any defendant offered a deal by police to "make the charges go away" has to ask for explicit confirmation from the D.A.'s office before agreeing to cooperate. Without such approval, a cooperation agreement lacks authority and leaves the defendant with little recourse if the D.A. later decides to press charges.

The appellate court's decision had two parts. First, it said that, though little state case law exists on cooperation agreements, federal case law clearly says that agreements between law enforcement and defendants are not binding without the approval of prosecutors. Thus at the local level, the authority to bring charges against a defendant rests solely with the district attorney's office. To decide otherwise, the court argued, would raise the possibility that a junior member of a police force could on her own negotiate dismissal of charges in exchange for assistance with an investigation.

The second part of the court's decision dealt with constitutional issues. A cooperation agreement could be enforceable without prior consent of the district attorney only if there had been a violation of the defendant's due process rights, such as incriminating himself or forgoing the right to counsel. When there is no "detrimental reliance" involving a constitutional consequence, the cooperation agreement need not be enforced.

Obviously, the problem here is that few defendants are aware of the distinction between police and prosecutor (they're both looked at as part of one law enforcement team) and hardly any defendants will be aware of this appellate court decision. What we can end up with is some police officers taking advantage of this lack of understanding on the part of defendants and convincing them to cooperate without explaining the need for D.A. approval of reduction of charges. And according to this decision, the defendants will have few if any means to enforce a cooperation agreement if the D.A. balks.

Thus, the First Appellate Court's decision is a cautionary tale with a clear moral: If the police offer you a deal in exchange for cooperation, the first thing to do is demand to speak with a lawyer, and the second is demand confirmation from the district attorney's office. Without that explicit affirmation from prosecutors, a deal to help with an investigation in exchange for a shorter sentence or reduced charges is no deal at all.

Cases of this kind require representation by a quality criminal defense attorney. If you have questions about a cooperation agreement, call the Law Office of Nancy King for a free and confidential consultation.

People v. C.S.A.., Court of Appeal of the State of California, First Appellate District

Last week the California Supreme Court gave its approval to arrest warrants that identify a suspect by DNA profile alone. Federal and state laws allow so-called 'John Doe' warrants, which identify a suspect by means other than a name. The question before the Court was whether a DNA profile satisfies the 'particularity' requirement, meaning that it identifies a suspect with sufficient clarity. The Court ruled that the unique quality of each person's DNA serves as an adequately precise descriptor of a suspect and thus is valid for arrest warrants.

The case involved Paul Robinson, who in 2000 was arrested in Sacramento County for a sexual assault that took place in 1994. The Sacramento D.A.'s office had issued an arrest warrant for the case four days before the end of the six-year statute of limitations period. Instead of the suspect's name, the warrant listed his DNA profile, which came from evidence at the crime scene. A few weeks later, an amended arrest warrant was issued, this time with the suspect's name, which had been obtained when the crime scene DNA evidence matched a profile in the state's DNA and Forensic Identification Data Base. Robinson was arrested, subsequently found guilty in Sacramento Superior Court and sentenced to state prison.

Robinson appealed his conviction on three grounds: 1. The original 'John Doe' arrest warrant did not constitute a valid commencement of prosecution within the statute of limitations period; 2. His DNA profile did not satisfy the 'particularity' requirement of an arrest warrant; 3. The police should not have been able to use his DNA profile in their investigation since it was obtained from an invalid application of the DNA and Forensic Identification Data Base and Data Bank Act while he was incarcerated for another offence in 1999.

The Supreme Court's majority disagreed with Robinson on all three issues. First, it affirmed that a 'John Doe' arrest warrant counts as the beginning of a prosecution and thus falls within the statute of limitations. Second, use of a DNA profile to identify a suspect on an arrest warrant is valid. The Court stated that, "For purposes of the Fourth Amendment, we conclude that the arrest warrant in question, which described the defendant by his 13-loci DNA profile and included an explanation that the profile had a random match probability such that there was essentially no chance of its being duplicated in the human population except in the case of genetically identical sibling, complied with the mandate of our federal Constitution that the person seized be described with particularity." Finally, the Court said that though the blood draw that placed Robinson's information in the DNA data base violated provisions of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, law enforcement personnel had made good faith attempts to comply with the law. The DNA evidence, therefore, need not be excluded.

The Court's decision does not mean that there is agreement about this issue. The two justices who dissented in the Robinson case argued that allowing 'John Doe' arrest warrants based on DNA evidence merely allows law enforcement to improperly extend the statute of limitations on a case. We'll have to watch the U.S. Supreme Court to see if it takes up this case or others like it.

If you have questions about arrest warrants, call the Law Office of Nancy King at 916-442-1200 for a free and confidential consultation.

The People v. Paul Eugene Robinson, Supreme Court of California, January 25, 2010

Among the most common interactions between citizens and police are traffic stops. Many of these are straightforward: a driver is speeding or doesn't heed a traffic signal and receives a citation from a police, sheriff, or CHP officer. Though the driver is irritated and out a few hundred dollars, nothing more serious results.

Some stops go beyond this, though, with charges of more serious crimes. This is where knowledge of probable cause and rules of search and seizure is so important.

Let's say that while driving home one night you're pulled over by your local police. Because of constitutional protections, police can't pull you over, detain you, or question you just because they feel like it. For an officer to initiate a traffic stop, he has to have probable cause, or some evidence that a crime has been, or is being, committed. (See our October 28 post for a general discussion of probable cause.) That means that he has to see you committing a traffic violation - e.g., driving too fast, weaving, rolling through a stop sign - or observe that some equipment on your car, like a brake light, isn't working.

Assume that the police do have probable cause to pull you over - your left front headlight is out - and during the course of this traffic stop, the officer asks for permission to search the car. Do you have to say yes? The short answer is, NO, and we advise clients to politely but clearly state something like, "I do not give my consent to a search of my vehicle." When police lack probable cause to search your vehicle, they must let you go on your way. Moreover, the officer is not allowed to hold your refusal against you.

Under some circumstances, though, police may conduct a vehicle search without your permission and without a warrant.

Though the Fourth Amendment appears to require that police obtain a warrant to conduct a search, the reality is not so simple. A traffic stop is one of those times when police may, depending on the circumstances, conduct a warrantless search.

The law is complex and ever changing on this issue, but there are some key guidelines to keep in mind. In Carroll v. United States (1925) the U.S. Supreme Court established the principle that police may conduct warrantless searches of motor vehicles if probable cause exists that evidence of a crime is present. The justification for this is that since motor vehicles are mobile, evidence could be carried away and disposed of if police were required to go off and ask a judge for a warrant. In California v. Acevedo (1991), the Court extended the scope of searches to include containers in a vehicle, again because the evidence in the container could be driven away and disposed of. Some limits on warrantless searches were articulated by the Court in Arizona v. Gant (2009) when it ruled that once a person has been arrested and moved away from the vehicle, police may not initiate a search unless that search pertains to evidence related to the crime for which the person was arrested. (See our detailed discussion of Arizona v. Gant in our August 23 post.)

The principles to keep in mind are (1) any warrantless search of a vehicle requires probable cause, and (2) without probable cause police must obtain your permission to conduct a search.

If you have questions or concerns about a traffic stop conducted by the police, sheriff, or CHP, call the Law Office of Nancy King.

The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

The felony process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.

First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.

Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.

Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.

Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.

Continue reading "Steps in the Criminal Justice Process: Felonies" »

Crimes are divided into three categories: infractions, misdemeanors, and felonies. (See our September 21 post for a detailed description of each of these.) Though each is dealt with according to the same general rules as it winds its way through the criminal justice system, more severe crimes follow a more complex and lengthy path.

Infractions like traffic tickets are pretty simple. Since no arrest is made, people cited for infractions can either pay the fine or contest the citation in court. Generally, defense lawyers and prosecutors are not involved. Instead, a judge handles review of the matter, determines whether the infraction was properly issued, and sets appropriate fines, if any are necessary.

Misdemeanors and felonies, because the potential penalties are more severe, involve more people and have more stages before a final decision - or verdict - is made. Today's post outlines the misdemeanor process. Our next post will review the felony process.

In each of these processes, a wide variety of people are involved: judges from the judicial branch of government; police/sheriff/CHP, prosecutors, and probation officers from the executive branch; defense attorneys; jurors. All play a different role as the allegation is reviewed and determination of guilt or innocence is made.

Misdemeanors - such as petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking - carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project.

These are the stages in the misdemeanor process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation; in others, police will make an arrest as a result of evidence that comes before them in the field (e.g., they see someone selling drugs or committing a battery). The incident reports are then submitted to the district attorney's office for filing of a criminal "complaint."

Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel. Bail may be set, though misdemeanors generally have low bail requirements; often defendants are released on their own recognizance.

Continue reading "Steps in the Criminal Justice Process: Misdemeanors" »

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - Fourth Amendment to the Constitution of the United States

Probable cause is among the most important legal protections U.S. citizens have against the exercise of government power. It is provided through the 4th Amendment because governments at all levels- national, state, and local - have great resources at their disposal to monitor people's activities, search their belongings, invade their residences, and deprive them of their liberty by arresting and jailing them. Citizens rely on the 4th Amendment to protect their privacy from government intrusion and their possessions from government seizure.

While the language of the 4th Amendment focuses on issuance of search warrants, probable cause comes into play in a variety of circumstances. One of the most common is when a police officer in the field suspects someone of engaging in criminal activity and must decide if probable cause exists to make an arrest.

Different definitions of probable cause have been articulated over the years, but they boil down to this: Can a reasonable person deduce from the evidence at hand that a crime has been or is being committed. Though similar to the notion of reasonable suspicion, which pertains to brief detention and questioning by police, probable cause is a more demanding standard, requiring more evidence and greater suspicion of wrongdoing. (See the October 22 post for a discussion of reasonable suspicion)

The difference between probable cause and reasonable suspicion in questioning and arrest can be illustrated this way. Let's say there's been a robbery at a local electronics store. Police may briefly detain and question a person if he is driving a car matching the description of a vehicle seen driving away at high speed from the store at the time of the robbery. Reasonable suspicion is satisfied. But more is needed for probable cause to make an arrest. One way would be for police to verify ownership of the car. If it is not registered to the person driving it, that is a step toward meeting the standard of probable cause. It doesn't prove guilt, but it certainly heightens suspicion. Next, police might look to the behavior of the person driving the car. If that person can't explain clearly where he's been or where's he's going, probable cause is closer to being met. Police, in this example, might also see boxes of what appear to be cell phones and Blu-ray disk players in the back seat. These facts taken together would most likely be enough to satisfy the standard of probable cause and allow police to make an arrest. It doesn't mean that the suspect is guilty; it means that sufficient evidence exists for the government to begin the process of filing formal criminal charges.

Continue reading "Probable Cause" »

As a follow-up to our October 9 post in which we explained the concept of reasonable doubt, today we look at reasonable suspicion. Though the words suspicion and doubt have related definitions in everyday usage, they have vastly different meanings and applications in criminal law when linked with the word reasonable.

Reasonable suspicion derives from the Fourth Amendment's right of the people to be free from unreasonable searches and seizures and pertains to law enforcement's ability to detain, question, or frisk a suspected criminal. A police officer must have more than a hunch. The standard is that a reasonable person looking at all the evidence believes that it is likely that the suspect has committed, or will soon commit, a crime.

What does this mean in practical terms? Here are a few examples. A person could be briefly detained and questioned by police if she/he: matches the physical description of a suspect; is driving the same make and color car that was involved in a crime; is seen running from the vicinity of a crime; is walking down the street with a handgun; or is seen on a surveillance camera leaving a store just after goods were stolen.

Many rules exist that complicate the matter, particularly related to frisking of a suspect, since frisking constitutes such an extreme invasion of privacy. For example, police may frisk a person whose clothing shows bulges that look like hidden weapons. They may not, however, frisk people for the mere suspicion of possessing drugs.

The detention and questioning of suspects has become known as a Terry Stop, because of the Supreme Court's ruling in Terry v. Ohio (1968), in which the Court laid down the principles of reasonable suspicion. The key thing to keep in mind is that each situation is different. Reasonable suspicion derives from the complete set of circumstances that law enforcement personnel encounter. If you have questions about an instance in which you or someone you know was detained and questioned by the police, contact the Law Office of Nancy King.

Our next post will cover probable cause, the standard required for police to obtain a warrant, conduct a search, or make an arrest.

Yesterday's post summarized newly passed California state law AB 91, which establishes pilot programs in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. Today's post explains why we think this new law should be challenged as unconstitutional. While we're sure that supporters of AB 91 are well intentioned and desire only to curtail drunk driving, we nonetheless believe that the law is a violation of the equal protection clause of the 14th Amendment.

Here is our argument: It is one thing for the state to set up general parameters for programs and then let localities decide for themselves the best means of implementation; it is another, and we think untenable, matter for the state to impose harsher penalties on the residents of four counties in the state and leave the penalties for residents of the rest of the counties unchanged. AB 91's IID requirement for Sacramento, Los Angeles, Alameda, and Tulare counties imposes just this sort of inequitable system. Calling it a pilot program doesn't justify or validate the uneven terms of punishment. What's to keep the legislature from passing a law mandating that people living in northern California automatically lose all driving privileges for 15 years after a first-time DUI conviction? Nothing except common sense (which the legislature often lacks) if AB 91 is allowed to stand.

Again, we support programs that reduce not just the number of DUI convictions but also the number of drunk drivers on the road, as long as those programs do not violate our rights granted by the U.S. Constitution. We see this law, no matter how well intentioned, as a violation of the 14th Amendment's promise of equal protection under the law.

We would rather see discretion left with the courts or even a statewide program that gives people convicted of DUI the option of having the IID installed on their vehicles in lieu of a license suspension. Many people lose their jobs when their driver's licenses are suspended as a result of a DUI conviction. The IID would be a good alternative that would keep people from driving while intoxicated, allow them to keep their jobs, and remain productive members of society.

Text of AB 91

Reasonable doubt is one of those concepts we hear so often that it's easy to accept as a truth without considering its precise meaning. As a follow up to our September 29 post on presumption of innocence, today's post will explore what is meant by this fundamental principle of the American justice system.

Before jurors begin hearing testimony and seeing evidence in a criminal case, the judge gives them instructions on topics ranging from confidentiality to note taking to what to do if they have questions. In California, jurors hear this explanation of reasonable doubt: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."

Attempts have been made in recent years to clarify jury instructions, but this definition of reasonable doubt can still leave people outside the legal system scratching their heads. To gain a clear understanding, it's best to build backwards, first exploring what is meant by "doubt," then "reasonable," and finally "beyond." Before we do that, a reminder: the burden of proof in criminal proceedings is on the prosecution. Because of the presumption of innocence, the state has to convince the jury that the defendant is guilty. And the standard that must be met is guilt beyond a reasonable doubt.

"Doubt" in this context refers to uncertainty. If I doubt that someone committed a crime, I'm not convinced that he did it. The standard for determining guilt, though, isn't concerned with unreasonable, fanciful doubts. What we care about are "reasonable" doubts, plausible alternative explanations that keep a reasonable person from saying with certitude that a defendant is guilty.

Finally there is "beyond." Though in everyday language beyond might have a connotation of distance, in relation to reasonable doubt it really means "eliminating" or "excluding."

So when we say that the standard in a criminal trial is proof beyond a reasonable doubt, we mean that a reasonable person has looked at the evidence and is left with only one plausible explanation: the defendant did it. If that standard is not met, then a jury must acquit the defendant.

Continue reading "Reasonable Doubt" »

Since Roman Polanksi was arrested in Switzerland two weeks ago, the airwaves, print pages, and blogosphere have been inundated with people voicing either their pleas for Polanski's release or stating their disgust at his crime and satisfaction that he might wind up behind bars. Though this is a criminal defense blog, we feel the need to add to the chorus voicing support for Polanski's extradition.

You're probably familiar with the details, but here is a brief summary. In 1977, Polanski was arrested in Los Angeles for plying a 13 year-old girl with alcohol and drugs and then raping her. He agreed to plead guilty to a lesser charge of unlawful intercourse with a minor and was given a 42-day jail sentence, to be served after completing a film under production at the time. After finishing the project, though, he promptly skipped off to France, where he has citizenship, and remained free for the next 32 years. He was arrest when he traveled to Switzerland to receive a lifetime achievement award at a film festival.

To us, the issue is simple and rests on the constitutional guarantee of equal treatment under the law. Just as the poor, marginalized, and powerless of our society should not be deprived of their constitutional protections when faced with criminal charges, the wealthy, famous, politically powerful, and social elite should not be granted preferential treatment.

A number of entertainment industry titans have said that Polanski should be set free because - pick one - the incident was a "mistake" that happened a long time ago, it wasn't actually a rape, attendees at film festivals should be free from the threat of arrest, and artistic talent trumps culpability for criminal acts.

We are not persuaded. Equal treatment under the law means just that. Everyone gets treated the same. The most disadvantaged person in our society must have the same privileges and immunities as the most powerful. Polanski pled guilty. He needs to face the consequences. End of story.

A recent ruling by the U. S. Ninth Circuit Court of Appeals brings together federal agents, computer data files, Major League Baseball players, and steroids in a fascinating defense of privacy against unreasonable government searches. Though the court's decision is tailored only to federal law enforcement, it does provide a glimpse of rules that state and local police may be subject to in the future.

In brief, the Ninth Circuit Court's decision in United States v. Comprehensive Drug Testing, Inc. (U.S. v. CDT) says this: (1) a warrant to search through a computer database does not grant federal agents the authority to open all files in that database; (2) federal judges in the Ninth Circuit District granting future search warrants of this type must require federal agents to waive the "plain view" rule as it applies to electronic records; (3) personnel who are not law enforcement agents must review the files in the seized database and then pass along to federal agents information related to the scope of the search warrant.

At this point, only federal warrants in the district covered by the court's decision (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) must abide by these rules.

Here's the background: in 2003, federal agents obtained computer data as part of an investigation into the use of performance enhancing drugs by Major League Baseball players. Federal agents were searching for information on ten players in particular, but during their review of the computer files they came across evidence that incriminated other people as well.

Continue reading "The Fourth Amendment, Search Warrants, and Electronic Evidence" »

A central tenet of the U.S. criminal justice system is presumption of innocence, a safeguard of the rights of American citizens since the nation's founding. In today's media saturated world, however, where information zips from terminal to terminal in seconds and people believe they know the truth because they have read something online or seen something on TV, it's important to remind ourselves of the importance of the presumption of innocence, which places the burden on state prosecutors to prove guilt, not on the accused to demonstrate innocence.

Considering someone innocent until proven guilty is actually not explicitly stated in the U.S. Constitution. Instead, it is implied in various amendments such as the Fourth Amendment prohibition against unreasonable searches by the government, the Fifth Amendment guarantee that a person cannot be compelled to be a witness against himself, and the Sixth Amendment rights of the accused to confront witnesses against him and to have the assistance of legal counsel. Through court decisions and federal and state laws, presumption of innocence has been infused throughout our criminal justice system.

Of course, this presumption applies only to the government, in the persons of law enforcement and the judiciary. It does not apply to the news media and private citizens. When confronted with a crime, they are free, because of the First Amendment, to make any suppositions they desire about who did what to whom and why.

The problem is that often this speculation is based on incomplete and incorrect evidence. Law enforcement, prosecutors, and defense attorneys are sometimes precluded by court order from disclosing details of a live case, but usually they refuse to divulge information for the simple, essential purposes of protecting the privacy of people involved as well as preserving the integrity of the legal system as a whole. The fact is that when a criminal complaint is filed, it is often based on untested information: a witness who hasn't been subjected to cross-examination, a portion of an audiotape or videotape that hasn't been reviewed in total, an investigation that is incomplete.

Continue reading "Presumption of Innocence and Electronic Media" »

As a follow up to our last post comparing felonies, misdemeanors, and infractions, today's post reviews expungement, the process by which some people can have convictions removed from their criminal records.

California Penal Code 1203.4 provides certain people convicted of crimes the opportunity to have their criminal records expunged. Expungement is meant for people who were found guilty of a crime but have subsequently turned their lives around. It is critical to remember that the criminal record remains; instead of a conviction, though, it shows a dismissal of the charges.

To qualify for expungement, a person must have completed probation, paid all fines and restitution, not spent time in state prison for the offense, and not currently have any criminal charges pending.

The person seeking the expungement has his/her attorney file a petition with the court asking for the case to the reopened and the conviction set aside. The petition identifies the previous conviction and describes the reasons the court should change the record from conviction to dismissal. Backing evidence, such as a written statement by the petitioner and letters from people who can attest to the petitioner's quality of character, is submitted to the judge for review. The role of the attorney is to convince the court that the petition has merit.

In most instances, expungement allows a person who has a conviction to say truthfully on an employment application that he has not been convicted of a crime. No matter the circumstances, expungement is seen as furthering justice and letting people who have become productive, law-abiding citizens the chance to participate in and contribute to society.

Continue reading "Expungement of a Criminal Record" »

A U.S. Supreme Court decision delivered this past spring has forced states to review the circumstances when crime lab technicians are required to testify in court about their reports. While this ruling has generally been praised by criminal defense attorneys, it has resulted in some confusion as state courts interpret and apply it. In fact, the situation is so muddled in California at this point, that two different state appellate courts - one in Sacramento and one in Los Angeles - have come up with opposite rulings even though the cases they confront are nearly identical.

Here's the background: The U.S. Supreme Court in June delivered its opinion in Melendez-Diaz v. Massachusetts, a case that asked this question: Are crime lab reports akin to business records, factual documents that can be submitted into evidence without cross-examination of the preparer, or are they "testimonial" in nature, with the perspective and bias of any witness for the prosecution, and thus subject to the Sixth Amendment's guarantee that the accused can confront and cross-examine witnesses?

Criminal defense attorneys were pleased when the Court declared that crime lab reports were testimonial and that defendants had to be able to cross-examine lab personnel. This is critical because defense attorneys need the opportunity to question technicians on their overall expertise, as well the procedures used in the preparation of specific lab reports. Though most reports are factually accurate, some are faulty, and defendants and their lawyers need the opportunity to "confront" the government's witnesses.

While many states had allowed lab reports to be submitted into evidence as factual documents (like an accountant's audit, for example) without the testimony of the preparer, California already had the practice of providing defense lawyers the opportunity to cross-examine lab personnel. This was even discussed during oral arguments before the Supreme Court for Melendez-Diaz.

But an interesting repercussion of this decision has already arisen here in California. Two different California appellate courts this summer came up with opposite applications of the Melendez-Diaz ruling. In one case, a state appellate court in Los Angeles ruled that it was okay for a member of the coroner's staff to testify about the contents of a report even though that person had not actually done the analysis. In another case, a state appellate court in Sacramento made the opposite ruling, requiring the person who actually did the lab work and wrote the report to appear in court. This is clearly an issue headed to the state Supreme Court, since one of that court's roles is to ensure uniform application of the law through the state.

It is our view that it is critical to have the report writer in court to testify not only to the data the report contains but also to the processes used, the background and expertise of lab personnel, and even the maintenance procedures followed for lab equipment. Defendants - whether accused of DUI, drug possession, theft, murder, or any other crime - have the right to be certain that law enforcement has followed appropriate safeguards in the acquisition and analysis of evidence and that the data presented in reports is accurate.

Melendez-Diaz v. Massachusetts, U.S. Supreme Court
Oral Arguments for Melendez-Diaz v. Massachusetts
"Court Weighs Use of Crime Lab Reports at Trial," Associated Press, November 10, 2008
"California Appellate Courts Clash Over Coroner Testimony," Law.com, August 27, 2009

The pervasiveness of social media - email, Facebook, Twitter, Second Life - and the ability of people to access data online through search engines such as Google, Yahoo, and Bing are having an impact on the conduct of jury trials. Lawyers and judges throughout the country are finding that the age old, simple admonition to jurors to not discuss a case when away from the courtroom just doesn't cut it in our information-saturated world.

In fact, a case here in Sacramento - involving a radio station stunt that resulted in the death of a woman who drank too much water - is believed to be the first in California requiring jurors to sign pledges stating that they will not go online to research topics related to the trial or communicate information to other people using electronic devices.

The concern in criminal trials, of course, is that, particularly for high profile cases, jurors might go online and access information that is incorrect or has been deemed inadmissible. A juror with that information would then come to deliberations with a different perspective on the trial than that of the other jurors.

One of the dangers, though, of banning the use of social media and search engines is that people will turn away even more than they do now from their civic duty of jury service. Judge Gary Randall of Nebraska, speaking today on the NPR program Talk of the Nation, made this point and argued that the drive to ensure that jurors consider only the information presented to them during trial must be balanced with the reality that more and more people are used to having continuous and instantaneous communication with friends and family. In other words, we need to make sure that we have an adequate pool of competent and motivated jurors.

Continue reading "Social Media, Search Engines, and the Courts" »