At its upcoming meeting on August 12 – 13, 2019, The American Bar Association House of Delegates will consider a resolution concerning the definition of consent in sexual assault cases. NACDL opposes the proposed resolution. The resolution and report appear below, as does the NACDL position and a counter proposal, a letter from members of the American Law Institute, whose consideration of this matter is referenced in the ABA report, and a letter in support of the proposed resolution.

NACDL has actively opposed legislative efforts in Utah to adopt affirmative consent requirements in sexual assault prosecutions.

Brief of Amici Curiae The American Civil Liberties Union, The American Civil Liberties Union of New Jersey, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey.

Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate.

Brief of Amici Curiae The American Civil Liberties Union, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey

Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate.

A collection of quotes from multiple cases on the legal definitions of consent. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellant’s petition for rehearing en banc and reversal of the district court’s judgment.

Argument: The Panel’s exclusive focus on “consent” and its assumptions about the imposition of probation conditions are wrong. Consent is merely a factor to consider when deciding whether a search is “reasonable.” Probationers do not necessarily “accept” probation terms. The reasonable suspicion standard should apply to all searches of a probationer’s home.

Amici curiae brief of the Juvenile Law Center, the National Association of Criminal Defense Lawyers, et al. (totaling 41 groups and individuals set forth in Appendix A to the brief) in support of real party in interest Tyler B.

Argument: Age and other circumstances particular to youth are crucial factors in assessing the voluntariness of a consent to a search under the Fourth Amendment. Where the search is conducted in the school setting, age is even more relevant to the voluntariness determination.

Brief of the National College for DUI Defense and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioners.

Argument: Studies indicate that warrant procedures are more effective in reducing refusal rates than criminalizing refusals. Studies by NHTSA reveal that criminal refusal laws do not affect the rate of refusals. Criminalizing refusals has had no impact on prosecutions of high risk refusers according to government studies. Because the availability of electronic and telephonic warrants, laws criminalizing refusals to submit to warrantless tests in impaired driving cases are unnecessary. States continue to successfully prosecute thousands of drunk driving cases after police obtain warrants to draw blood. Technology advances allow police to obtain warrants in minutes. Threat of incarceration is a recognized means of psychological coercion and is well-established as a tool of behavior modification. Yet such legislative techniques run afoul of the Fourth Amendment.