Text Messages Admissible?

The Supreme Court of Pennsylvania has accepted Commonwealth v. Koch to address whether text messages should be admissible in a criminal trial. In a drug prosecution, the Pennsylvania trial court admitted transcripts of text messages taken from the defendant's cell phone. The defendant objected to the admission of the text messages on the grounds of hearsay and authentication. The Superior Court of Pennsylvania reversed the conviction, finding that the text messages were inadmissible hearsay because the Commonwealth was not able to prove that the defendant was the author of the text messages. When dealing with electronic communications, whether as the proponent or opponent, it is important to consider both authentication and admissibility. The Pennsylvania Superior Court noted that the reason the text messages in this case were not admissible as hearsay was because the Commonwealth was not able to show who the author of the messages was. It is not enough to show that the account belongs to a person because other people can have access to accounts as noted by the Court. Similarly, the Nevada Supreme Court ruled last month in Rodriguez v. Nevada that text messages should not have been admitted into evidence where there was no evidence that corroborated that the defendant was the sender of the messages. Authentication is the precursor to admissibility so, whether proponent or opponent, the first step is whether a proper foundation has been laid that authenticates the message. Text messages are mostly being analyzed by the Courts as electronic communications so the steps similar to email accounts should be employed. Authentication can be done by a cell phone provider, a witness that saw the person using the phone, or other corroborating evidence. Pre-planning is required to have the correct witness there to authenticate the messages. Even if the text message can be authenticated, the message itself has to be relevant and otherwise admissible. The critical issue is usually hearsay and whether there is some exception. For example damaging text message could properly be considered a statement against party opponent, as noted by the Pennsylvania Superior Court, if the Commonwealth had been able to show the defendant was the author of the message. The other major consideration for text message admissibility is as impeachment evidence against a testifying witness. Again, authentication is key before a witness can be impeached with the message. It is important to leave enough time to subpoena the cell phone provider. We have collected common provider subpoena compliance information in the sidebar. When objecting to the admission of text message or other electronic communications, objections will likely be centered on authentication/foundation, hearsay, and constitutionalizing the objection with the Sixth Amendment Confrontation Clause.

FBI Training Materials "Black Separatist Threat"?

The ACLU recently released FBI training materials that warn agents of a new terrorist threat..."Black Separatists". The dubious materials seem to suggest that starting in 2009 with the FBI's Atlanta Intelligence Notethe FBI have linked an increase in the Atlanta African-American population with domestic terrorist separatist groups. However, no actual reported violence has occurred. Even more interesting is what the definition of "Black Separatist" is and how the FBI is potentially equating "separatist" with "terrorist". This training appears to be part of the FBI's racial and ethnic mapping program. The concerns should be obvious and worth noting in cases where illegal surveillance and wiretapping might lead to arrest. Here's more...

Newly-released FBI domestic terrorism training presentations on "Black Separatist Extremists" juxtapose decades-old examples of violence by the Black Panthers and the Black Liberation Army with unorthodox and controversial beliefs expressed by a number of different modern groups to suggest, without evidence, that these latter-day groups pose a similar threat of violence. The FBI admits that the organizations it calls "Black Separatists" have no unifying theme or mission, stating "specific goals historically fluctuated between group to group," but suggests that "all share racial grievances against the U.S., most seek restitution, or governance base [sic] on religious identity or social principals [sic]." This broad description could of course cover many different groups from the fringe to the mainstream, exposing them all to heightened government surveillance. Related counterterrorism training presentations indicate the FBI has also invented a new class of domestic terrorists in 2009 called "American Islamic Extremists," which it describes as American Muslims who mix "Islamic theology with some levels of black separatism, anarchism, and racial rhetoric." These FBI training materials, obtained through Freedom of Information Act litigation by the ACLU of Northern California, the Asian Law Caucus and the San Francisco Bay Guardian, raise three primary concerns. First, for the FBI to produce training programs that portray groups as violent threats based on old and misleading evidence and false associations is improper, and can only misdirect investigative resources. And because the groups highlighted have little in common save their racial identities, these flawed trainings will encourage racial profiling, rather than fact-based investigations. Second, the presentations' focus on the unconventional ideologies of these modern groups tends to suggest a direct connection between belief and violence, which will again lead to inappropriate investigations based on First Amendment-protected activities rather than evidence of criminal conduct. Finally, even where these inappropriate investigations based on race and ideology fail to find evidence of violence, under its new rules the FBI may continue to pursue these groups under what it calls a "disruption strategy."

New Video from Narco News

Narco News TV's motto is "Making Cable News Obsolete Since 2010" posted a new video this weekend that has already received 10,000 hits. The topic? Mexican kids satirizing politicians and the very profitable "War on Drugs". The video was made by the mysterious group "Los Vengadores MX" (the Mexican Avengers).

New Border Focus on Olympic Peninsula

The New York Times ran an article yesterday about an unlikely new focus for immigration...Forks, Washington. The town of a little more than 3,000 people in the site of a $10,000,000 new Border Patrol facility. The article reports that there are many immigrants in the small Northwest town that get work in the winter picking salal, a wild shrub used for flower arrangements. But residents have noticed that routine traffic stops will suddenly turn into Border Patrol encounters. Last month, the ACLU and the Northwest Immigration Rights Project joined together in filing a lawsuit in Seattle against the Border Patrol claiming that the Border Patrol is engaged in unconstitutional racial profiling in the Western District of Washington. It has become a practice of the Border Patrol to join local law enforcement, often under the auspices of acting as an interpreter, in routine traffic stops. The plaintiffs of the lawsuit include a Forks resident of Latino descent who is a corrections officer for the State of Washington. The corrections officer, a US Citizen, was stopped for having windows with too dark of tint; however, questioning by Border Patrol Agents quickly turned to the correction officer's citizen status. The lawsuit is worth following and mentioning when dealing with traffic stops that appear to have a pretext.

The lawsuit seeks a declaration that the Border Patrol’s suspicionless stops violate the Fourth Amendment and exceed the agency’s legal powers. The suit seeks to prohibit Border Patrol agents from stopping vehicles without reasonable suspicion that an occupant has entered the U.S. without approval. It also seeks to prohibit stops altogether until each agent on the Olympic Peninsula has received training regarding what constitutes reasonable suspicion for a stop. The suit would have the court require that Border Patrol agents prepare documentation recording the basis of their suspicion that justifies each stop. Furthermore, the documentation should be easily accessible to a court-appointed special master to monitor compliance.

US v. Joe Arpaio

We Can All Do Better says Bill Bradley

Watch Bill Bradley Outlines Ways to Fix Washington on PBS. See more from PBS NewsHour.

Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison

Government Accountability Office (GAO) issued a study on the Bureau of Prisons entitled Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates’ Time in Prison. Their conclusions:

Federal inmate populations have been increasing and BOP is operating at more than a third over capacity. In addition, the absence of parole in the federal system and other federal statutes limit BOP’s authority to modify an inmate’s period of incarceration. Inmates, who earn their good conduct time, as most do, end up serving about 87 percent of their sentences. BOP’s housing of inmates in community-based facilities or home detention is a key flexibility it uses to affect a prisoner’s period of incarceration. However, BOP does not require its RRC contractors to separate the price of home detention services from the price of RRC beds. As a result, BOP lacks information on the price of home detention that could assist it in weighing the costs and benefits of alternative options for supervising inmates in home detention. While BOP is working to develop a process to require contractors to submit separate prices for the price of RRC beds and home detention services, without establishing a plan, including a time frame for development, BOP does not have a road map for how it will achieve this goal.

I Jury and other cool legal apps

There are many apps out there designed to make your legal life easier. One such trial presentation tool that looks like it has real promise over the tried and true Post-It note method is i-Jury. i-Jury is almost like having facebook for your jury. You can input data from your juror questionnaire and give it a positive, negative or neutral rating. The app will generate bar chats based on the data to provide valuable trends in the juror pool. It is 14.99. A full review of the app is available here. For reviews of other useful legal apps, check out the ABA's Tech Show article that includes a recap of some of the more popular apps out there.

Products and services mentioned included case management software and workflow wizards; HotDocs and Pathagoras for document assembly; remote collection devices for electronically stored information; TextMap and LiveNote as transcript management software; TrialDirector for evidence presentation; whiteboard apps that allow drawing on a simulated canvas, and jury selection apps like iJury, Jury Duty and Jury Box.Products and services mentioned included case management software and workflow wizards; HotDocs and Pathagoras for document assembly; remote collection devices for electronically stored information; TextMap and LiveNote as transcript management software; TrialDirector for evidence presentation; whiteboard apps that allow drawing on a simulated canvas, and jury selection apps like iJury, Jury Duty and Jury Box.

Inside the Fishbowl

I have worried a good deal about that fish bowl over the years, and it seems pretty clear that it’s getting smaller, and its walls are getting more transparent. To give just one example, the other day one of my sons sent me a link to a satellite picture of my house from Google Maps. You could not only see the house in pretty clear detail, but you could see who was home, from the two cars in the yard—my son’s blue Subaru and my brother-in-law’s gray Avalanche. I was very happy that I hadn’t been taking one of my famous nude sun-baths on my patio.

This excerpt appeared in the Stanford Online Law Review in an article entitled, "The Dead Past" written by Judge Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. (64 Stan. L. Rev. Online 117). In the article, Chief Judge Kozinski discusses some of the recent technology related decisions related to GPS monitoring and privacy in the digital age. The article focuses on the intersection of law and technology: "And this brings into focus a key issue in the law pertaining to privacy: Not everything an individual wishes to keep private is legally protected as such. The law, and particularly the Fourth Amendment, only protects those items as to which an individual has a legitimate expectation of privacy." Chief Judge Kozinski famously dissented in the denial of an en banc review last year in United States v. Pineda-Moreno, pointing out the slow erosion of the Fourth Amendment and privacy:

Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

Chief Judge Kozinski eloquently expounds on the law and privacy themes in "The Dead Past", concluding that the fishbowl continues to be constructed by our own hands. (full article here).

Mother's Day Special: "Justice Mamas"

For Mother's Day this year, the ACLU is working on awareness for mothers of incarcerated children with a special petition to ban solitary confinement. Solitary confinement is the practice of leaving people in single person cells for twenty-two to twenty-four hours per day. Most time spent in solitary confinement is spent without the use of telephone, television, reduced or no natural light, restriction or denial of reading material, television, radios and other property; severe limits on visitation; and the inability to participate in group activities. Often a person is solitary is not permitted visitation and when visitation is permitted, it is behind a barrier or the incarcerated person will have to attend the visit shackled. The ACLU notes that the practice of solitary confinement in US prisons is not limited to dangerous or violent prisoners. According to an information sheet that accompanies the petition:

Forty‐four states and the federal government have supermax prisons, housing at least 25,000 people nationwide. Using data from a census of state and federal prisoners conducted by the federal Bureau of Justice Statistics, researchers estimate that over 80,000 prisoners are held in “restricted housing,” including prisoners held in administrative segregation, disciplinary segregation and protective custody – all forms of housing involving substantial social isolation. The majority of individuals housed in isolated confinement are severely mentally ill or cognitively disabled. Low‐risk “nuisance prisoners” are also housed in solitary because they have broken minor rules or filed grievances or lawsuits. Children held in adult prisons are also held in solitary “for their own safety.” If the use of solitary confinement were restricted solely to the dangerous and the predatory, most supermax prisons would stand virtually empty.