Criminal Law Newsletter October 2016

The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles. 

Legislation

In a Washington Post op-ed, Prof. Orin Kerr summarizes updates to his Computer Crime Law casebook and provides his thoughts about how the field is evolving.

The New York Law Journal reviews new criminal justice legislation enacted in New York state that, inter alia, amends the definitions of some crimes and increases penalties for others. (Subscription required.)

Policy

In late September, the President’s Council of Advisors on Science and Technology (PCAST) released a report that concludes only that DNA analysis of single-source and simple-mixture samples and latent fingerprints are “scientifically valid and reliable,” and that certain manners of analyzing DNA in complex-mixture samples are more reliable than others. PCAST concludes that none of the following fields of forensic science should be introduced as evidence in criminal cases: (1) bitemarks, (2) firearms identification (that is, that a particular bullet was fired from a specific firearm), (3) footwear analysis (that is, that a particular shoe made a particular shoeprint), and (4) hair analysis. The report also recommended that the U.S. Department of Justice not seek to introduce evidence from forensic disciplines PCAST considers to be invalid and that federal judges—overruling precedent if necessary—refuse to admit evidence from those disciplines. Responses to the report have included U.S. Attorney General refusing to follow the report’s recommendations and criticism of the report by the Federal Bureau of Investigation and the American Congress of Forensic Science Laboratories. For more information about the PCAST report, prosecutors may contact Amie Ely at aely@naag.org.

A thoughtful, lengthy piece in The New York Times Magazine, “Should We See Everything a Cop Sees?,” discusses issues raised when law enforcement records civilian interactions, including when video—whether from dashboard or body cameras—is requested by the public. In several disturbing vignettes, the author describes videos that have been posted to Youtube by “transparency advocates” that include names, addresses, and intimate information about the people who were recorded on the cameras. The piece also describes the lengthy process to hand-redact videos and describes a software program being used to blur videos in a manner that conceals the identities of those “caught on tape” while allowing for review of the general outline of the video by the public.

In California, “criminal justice reform” that included the release of “low level offenders” from jail has spawned what the Wall Street Journal has termed a “vagrancy epidemic.” In Santa Ana, the city council declared a public-health crisis due to the dangerous and unsanitary conditions in a homeless encampment, including used syringes and human feces. Property crime in Orange County has surged. Arrests for drug crimes have plummeted, as police have apparently chosen not to make narcotics arrests that will result in a few days in jail at most, as has participation in drug courts that would have otherwise allowed an addict to avoid jail time.

The U.S. Department of Justice has outlined a plan to enable the nationwide collection of data on law enforcement interactions with civilians, including that related to the use of force by law enforcement officers.

In the Courts

Prosecutors in Massachusetts are dealing with the fall-out from tens of thousands of cases processed by two chemists in the state crime lab, one of whom admitted to falsifying her drug testing results for more than eight years and the other of whom was using the drugs she was testing. Defense attorneys and the American Civil Liberties Union argue that every case the chemists—both now incarcerated—were involved in should be dismissed; prosecutors counter that each case should be reviewed on its merits, particularly given that the chemists were rarely the sole source of evidence against the defendants.

On October 13, 2016, the U.S. Attorney’s Office for the Southern District of New York filed a motion for rehearing en banc in Microsoft v. United States, a case in which the Second Circuit Court of Appeals severely restricted the ability of prosecutors to use Section 2703 search warrants to obtain information that American companies choose to store overseas. Pointing out that the court’s holding meant that some data was not reachable even by using Mutual Legal Assistance Treaty procedures, the Government argued that the three-judge panel erred in concluding that requiring U.S. companies to comply with U.S. search warrants for data those companies could electronically access in the U.S. was an impermissible extraterritorial application of the statute.

Training

The National District Attorneys Association and the Salt Lake County District Attorney’s Office host a course called “Investigating and Prosecuting Homicide” in Salt Lake City, Utah, from November 2-3, 206.

The New York State Bar Association is holding its Fall Forensics Conference at New York Law School on November 15, 2016.

In Florida, registration is open for “Criminal Law Update 2016,” a program presented by the Florida Bar that is designed for attorneys practicing in state criminal court. The program will be help in Tampa on December 2, 2016.

The NAGTRI Center for Ethics & Public Integrity will hold a mobile ethics course for Alabama prosecutors on December 15, 2016.

Other News of Interest

In a speech to the International Association of Chiefs of Police, FBI Director Jim Comey argued that the lack of hard data about police-involved shootings means that a “narrative has formed, in the absence of good information and in the absence of actual data… [that b]iased police officers are killing black men at epidemic rates.” Comey said this narrative was being “driven by video images of real misconduct, possible misconduct, and perceived misconduct” and threatens the future of American law enforcement.

Hawaii and Montana have been awarded $2 million federal grants that fund the inventorying and testing of sexual assault evidence collection kits that had been collected in the past but not yet tested. In Hawaii, H.B. 1907—passed this year—requires all law enforcement agencies and departments charged with the maintenance, storage, and preservation of sexual assault evidence collection kits to conduct an inventory of all such kits being stored by the agency or department.


Amie Ely is the Editor of Criminal Law Newsletter and may be reached at 202-326-6041. The Criminal Law Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail aely@naag.org.

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