Immigration Consequences of Criminal Convictions

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arisingfrom a guilty plea. Defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The Court held specifically that when the risk of removal resulting from a guilty plea is “clear,” counsel must advise his or her client that “deportation [is] presumptively mandatory”; on the other hand, when that risk is less clear, counsel need only advise the defendant “that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130 S. Ct. at 1483. The Court acknowledged that a “[l]ack of clarity in the law . . . will affect the scope and nature of counsel’s advice.” Id. at 1483 n.10.

Full report can be found here.

Sixth Amendment Requires Cross-Examination of Forensic Lab Witness

The United States Supreme Court announced a decision today in MELENDEZ-DIAZ v. MASSACHUSETTS on the Sixth Amendment Right to cross-examine witnesses. The case involves a drug case brought by the State of Massachusetts in which the State introduced a lab certificate stating that the material seized by the police was in fact cocaine as well as the quality and quantity seized. Melendez-Diaz argued that the introduction of the lab certificate violated the Sixth Amendment and Crawford v. Washington because Melendez-Diaz has a right to cross-examine the lab witness as to process and findings.

The Supreme Court ruled that in fact the lab certificate, even though notarized, was testimonial as it was prepared in anticipation of litigation and that Melendez-Diaz has a right to cross-examine the lab witness. The Court further stated:

Petitioner's power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution's task burdensome. In any event, the practice in many States already accords with today's decision, and the serious disruption predicted by respondent and the dissent has not materialized.

The opinion also quotes from the recent National Academy of Sciences report regarding the not always reliable scientific testing that results from forensic labs:

Nor is it evident that what respondent calls "neutral scientific testing" is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S-17. A forensic analyst responding to a request from a law enforcement official may feel pressure--or have an incentive--to alter the evidence in a manner favorable to the prosecution.

Remember to look critically at any evidence (business records, certificates, or any written document) that the Government wants to introduce in lieu of live testimony especially if prepared after the incident. Also, challenges to forensic evidence is more viable than ever given the mention in the Supreme Court opinion and based upon the wealth of information available from the National Academy of Sciences report.
Congratulations to Jeffrey Fisher of the Stanford Law Clinic for this important decision reaffirming the importance of cross-examination!

Does Recording Legal Calls From Jail Violate Sixth Amendment?

Clients in the jail often call their attorneys and investigators from jail house phones. Often that is the only way to communicate between jail visits. Can we challenge those recordings as violating the Sixth Amendment?

A California public defender reportedly is using a novel constitutional argument to support his contention in a state-court lawsuit that the local district attorney's office is unfairly listening into conversations on public jailhouse telephones to gain information about criminal cases.

Although such eavesdropping has withstood Fourth Amendment challenge, Contra Costa County Public Defender David Coleman is arguing that it violates the Sixth Amendment. The practice, he contends, does an end run around defendants' right to legal counsel by, in effect, contacting a defendant who is known to be represented by legal counsel, according to the Contra Costa Times.

Full article here