January/February 2018

January/February 2018 Cover

What are the problems associated with (1) verifying geo-location information and (2) obtaining evidence from portable electronic devices such as fitness trackers?  


Articles in this Issue

  1. #Trending: Traditional Crimes Meet Nontraditional Evidence

    In order to be prepared, defense lawyers must seek evidence from sources beyond Snapchat and Twitter. Ian Friedman and Eric Nemecek consider the increased reliance on information derived from portable electronic devices, including Fitbit and Garmin fitness trackers. In addition, they discuss the difference between “precision” and “accuracy” as those terms relate to geo-location information provided by applications such as Foursquare and Google Maps. They point out that, as with any source, collecting information presents concerns regarding how to verify its accuracy.

    Ian N. Friedman and Eric C. Nemecek

  2. Affiliate News

    Affiliate News January/February 2018 Champion.

    Gerald Lippert

  3. Applying the Brakes on a Runaway Train: Forfeiture and Recent Supreme Court Developments

    The dictionary defines “forfeiture” as the loss of property or money due to the breach of a legal obligation. This is the part of a client’s sentencing that turns some criminal defense attorneys into frightened first-year law students. Many inform the client to “let the property go” or to retain someone later to deal with the issue. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture. He also examines the recent Supreme Court decision in Honeycutt v. United States and its possible ramifications.

    Steven L. Kessler

  4. Book Review: The Brady Book - Are Prosecutors Hiding Evidence?

    This is what the defense lawyer knows: She has done a masterful job cross-examining Turncoat, a co-defendant, now prosecution witness, whose pending murder case had been severed from that of her client. Despite his practiced assurances on direct examination that he made no deal with the prosecutor for his testimony and only wants to tell the truth, she has kindled a little heat in Turncoat’s demeanor by pressing him to admit the following: (1) he was released on his own recognizance following his arrest for murder; (2) his preliminary hearing was put off for the past two years, suspiciously trailing her client’s case; and (3) while he might hope for a deal in exchange for his truthful testimony, the prosecutor has promised him absolutely nothing and he relies only on the intuition and good judgment of his lawyer in taking the stand.

    Timothy B. Rien

  5. Book Review: You Have the Right to Remain Innocent

    James Duane’s You Have the Right to Remain Innocent is a 150-page 2x4 that beats its reader over the head with one simple message: do not talk to the police. Specifically, Duane says, if you have any reason to think that police suspect you in connection with a crime, tell them your name and the reason for your being where you are, then tell them politely that you will not answer any questions and that you would like a lawyer. You have nothing to gain by saying more, he says, and everything to lose.

    Regan Gibson and Andrew T. George

  6. Busted at the Border: Duress and Blind Mule Defenses in Border-Crossing Cases

    Duress and blind mule defenses are often the only means to defend a case involving drugs or other illegal cargo brought into the United States. Although mostly seen in states on the border, the defenses also apply to domestic contraband cases. Walter I. Gonçalves, Jr. analyzes case law on the duress jury instruction, and points out that a jury’s rejection of a duress defense at trial does not preclude a sentencing court’s downward departure based on duress. Gonçalves provides a checklist for evaluating a blind mule case, and he discusses “structure” evidence and defense reliance on publicized examples of blind mules. Although a defense lawyer may dislike putting a client on the witness stand, the nature of duress and blind mule defenses makes it difficult to avoid doing so.

    Walter I. Gonçalves, Jr.

  7. From the President: See No Evil: Prosecution and Unchecked Discretion

    Several studies show that prosecutorial misconduct is not an outlier. It is rare, however, for a prosecutor to be held accountable for misconduct.

    Rick Jones

  8. Getting Scholarship Into Court Project

    Getting Scholarship Into Court Project Column January/February 2018 Champion.

    Getting Scholarship Into Court Project

  9. Inside NACDL: Federal Public Defense: The Mysterious Case of a Very Public Inquiry and a So Far Very

    What are the findings made by the Committee to Review the Criminal Justice Act Program? The committee submitted its report in November 2017. As of March 2018, however, the Judicial Conference of the United States has not released the report.

    Norman L. Reimer

  10. NACDL News: Conference Report Sets Forth Recommendations for Improving Delivery of Justice in Crimin

    A report issued by NACDL on Dec. 7, 2017, offers proposals for specific reforms that judges can implement to improve the delivery of justice in misdemeanor courts. The report is an in-depth summary of the April 6-7, 2017, conference at Hofstra University that brought together experts and stakeholders in the criminal justice system to explore the impediments to and reforms needed to ensure effective justice in all stages of the criminal process, with a particular focus on the judicial role in high-volume misdemeanor courts.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  11. NACDL News: Jessica Stepan Appointed Associate Executive Director for Strategic Marketing for NACDL

    On December 18, 2017, Jessica L. Stepan joined the staff at NACDL as Associate Executive Director for Strategic Marketing. In this position, Stepan will oversee the development of interdepartmental initiatives that enhance the visibility and benefits of NACDL, its programs, and its products. She will also establish and maintain a strategic plan to increase membership and enhance non-dues revenue streams.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  12. NACDL News: Study Reveals ‘Profound and Dramatic Understaffing’ of Rhode Island Public Defender Syst

    In order to determine whether defenders in Rhode Island are facing a caseload crisis, NACDL, the American Bar Association Standing Committee on Legal Aid and Indigent Defendants (ABA SCLAID), and the BlumShapiro accounting firm undertook an assessment of the Rhode Island Public Defender system (RIPD). The findings of this study, along with the underlying data and analysis, are detailed in The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards. Based upon the data, the RIPD would require 136 full-time equivalent attorneys to provide the necessary minimum level of representation needed for the average 15,000 new cases assigned each year. As of July 2017, there were only 49 public defenders in the entire state.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  13. NACDL® 2018 Election Procedures

    NACDL® 2018 Election Procedures.


  14. Public Defense - Too Many Letters From Jail: Justice Reform as the Civil Rights Movement of Our Time

    The criminal justice system is out of balance because one of the institutional checks on the system, public defense, is in crisis. We are duty bound as advocates and defenders to reform and strengthen the public defense system.

    Derwyn Bunton

  15. Some Things About the Internet of Things

    The Internet of Things” refers to computing devices — connected via Wi-Fi — embedded in everyday objects, enabling them to send and receive data. These devices, including robotic vacuum cleaners, wearable fitness devices, and smart refrigerators, are ready to do the customer’s bidding while also gathering data about the customer that they send to a corporate computer server. Does this data constitute a “business record”? Are there Fourth Amendment protections?

    Sam Guiberson