Showing posts with label Fifth Amendment. Show all posts
Showing posts with label Fifth Amendment. Show all posts

Wednesday, August 27, 2025

Creators: The Turbulent 1960s Continue to Shape America's Criminal Justice System

Matthew T. Mangino
CREATORS
August 26, 2025

The 1960s were turbulent. The nation was in the midst of two wars. First, the Cold War with the Soviet Union and later the Vietnam War. Former President John F. Kennedy was assassinated in 1963, Martin Luther King was killed in 1968 as well as President Kennedy's brother, and presidential candidate Robert F. Kennedy. There was racial unrest and anti-war protests. The tumult of the 1960s changed America forever.

During the 1960s, the U.S. Supreme Court also experienced a tumultuous evolution. Starting in 1961, the U.S. Supreme Court made a series of decisions regarding the rights of criminal defendants that still reverberate today. Starting with the decision of Mapp v. Ohio, the court issued four decisions that continue to be analyzed, interpreted and adjusted more than 60 years later.

Dollree Mapp refused to let the police enter her house without a warrant. The police returned several hours later with a document purported to be a warrant — it was not. They entered her home, found some illicit material and arrested her. She unsuccessfully challenged the evidence at trial. On appeal, the Supreme Court found in her favor and extended the "exclusionary rule" to state prosecutions.

The exclusionary rule prohibits the police from using evidence illegally obtained. The rule is the primary impetus behind improvements in police training and the general protection of individual constitutional rights.

Ironically, the late Justice Antonin Scalia cited "increasing professionalism of police" as a reason for the exclusionary rule's obsolescence.

Scalia's argument didn't make sense then and doesn't make sense today. Without the exclusionary rule, an individual's constitutional rights would be ignored. Law enforcement training would turn on a dime. Without constitutional guardrails, police would turn a blind eye to individual rights with impunity.

In 1963, the court decided Gideon v. Wainwright. The landmark decision held that state criminal courts must provide counsel to defendants in criminal cases without cost if they cannot afford an attorney. Although most states were already providing free legal counsel to defendants facing a charge that could result in a prison sentence, Florida and a handful of other southern states were not.

Two years later, the court decided Miranda v. Arizona and incorporated Gideon into the decision. The decision requires the police to inform a suspect who is in custody that he has the right to remain silent and the right to an attorney.

Although the Miranda warnings are etched in nearly everyone's consciousness, the decision is still evolving. Little more than a decade ago, a murder suspect in Texas who answered questions for almost an hour was then asked about some incriminating evidence. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect "(l)ooked down at the floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap, (and) began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent.

Finally, in 1968, the Supreme Court decided Terry v. Ohio. The court found that it was not an illegal search and seizure if a police officer with "reasonable suspicion" — more than just a hunch — stops a suspect on the street, asks her to identify herself and pats her down for a weapon.

As the U.S. Supreme Court has moved right, these landmark decisions are being tested. Without constitutional guardrails, police could turn a blind eye to individual rights with impunity.

The right to remain silent; the exclusion of illegally obtained evidence; limits on stopping individuals without adequate suspicion; exemplify the integrity of our criminal justice system — even strong evidence of guilt cannot be used if police violated the Constitution to get that evidence.

The 1960s continue to have an impact on the Supreme Court and, more importantly, on the fundamental rights of those accused of a crime.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit Creators CLICK HERE

Wednesday, June 25, 2025

CREATORS: The End May Be Near for Miranda v. Arizona

Matthew T. Mangino
CREATORS
June 24, 2025

Nearly 60 years ago, U.S. Supreme Court Justice Potter Stewart asked Attorney John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, "(H)e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel."

So were born the Miranda warnings. The landmark Supreme Court decision in Miranda v. Arizona has become part of American culture. Miranda's conversion from legal holding to cultural icon is due mainly to the nation's insatiable appetite for television crime dramas. Everyone with a television has heard Miranda warnings.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court's opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

As we soon mark 60 years since the decision in Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach of activist courts — quite the contrary — the U.S. Supreme Court has continually tested, and at times, expanded and restricted the decision.

For instance, in 1981, the Edwards rule was established. The Court held that once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the Court established a bright-line rule finding that if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.

Although the Miranda warnings are etched in nearly everyone's consciousness, the Supreme Court found that the police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.

Then, in 2011, the Supreme Court decided a North Carolina case establishing for the first time that law enforcement must consider a suspect's juvenile status when carrying out the requirements of Miranda.

In 2022, the high Court held that a Miranda violation does not automatically translate into a constitutional violation actionable under the Civil Rights Act. The Court reasoned that Miranda warnings are procedural safeguards, not constitutional rights, and that a violation of these safeguards does not necessarily mean a violation of the Fifth Amendment.

Miranda is ever evolving. The late Justice Antonin Scalia was a critic of Miranda, although he didn't have time to dismantle the ruling. With six conservative justices on the court, the end may be near.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit Creators CLICK HERE

Wednesday, June 18, 2025

CREATORS: The Obsolescence of Proof Beyond a Reasonable Doubt

Matthew T. Mangino
CREATORS
June 17, 2025

Former Supreme Court Justice Anthony M. Kennedy acknowledged in 2012 — when writing an opinion to establish the right to competent counsel for defendants negotiating a plea — that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

In 2022, a little more than 1 in 100 federal defendants and 1 in 20 state defendants went to trial. A significant majority of criminal cases are resolved by plea bargaining.

A plea bargain is a negotiated agreement between the government and a person accused of a crime. The accused agrees to accept responsibility in exchange for reduced charges or a more lenient sentence.

Many of those who choose to plead guilty serve their jail time before they are sentenced. How can an inmate serve his sentence before he is determined to be guilty?

The American criminal justice system has prided itself on the heavy burden placed on the government to prove those accused of a crime guilty beyond a reasonable doubt — yet very few are actually subject to that burden.

One of the most significant factors in resolving criminal cases is poverty. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great — witnesses disappear, evidence is weaker than first thought, the defendant has an alibi — the prosecutor offers a plea to a lesser charge and time already served in jail.

The defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.

Here is what the scales of justice are weighing in many cases. Liberty right now or further incarceration with the risk of conviction at trial, along with a harsh sentence.

There seems to be something inherently wrong with locking up poor people who can't afford a bond and then offering the time they already served as the penalty. In America, it is not just the poor who negotiate their way through the system.

Most defendants who pass through the criminal justice system waive the right to a trial and the panoply of constitutional protections that come with being charged. Those rights are some of the most fundamental rights afforded a person by the U.S. Constitution. For one, the right to confront witnesses. The Sixth Amendment provides that a person accused of a crime can cross-examine witnesses to determine if they are biased or their memory is faulty or unclear. A defendant can't do that at a plea hearing.

At trial, a defendant has the Fifth Amendment right to remain silent. No one can be forced to be a witness against oneself. That right doesn't exist at a plea hearing. The defendant is often the only witness and must acknowledge guilt.

A defendant has the right to pick an impartial jury of his or her peers, but not when pleading guilty. A defendant has the right to a speedy trial ... that right must be waived to enter a guilty plea.

The defendant may have a basis to challenge a search or arrest under the protections provided by the Fourth Amendment's prohibition against unlawful search and seizure. However, if the defendant wants a favorable plea bargain, those rights must be waived.

For those without the ability to post bail, plea bargaining is often the only avenue to freedom. Two defendants charged with the same exact crime in the same jurisdiction — one has money, he can post a monetary bond and walk the streets until trial, just like any law-abiding citizen.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit Creators CLICK HERE

Wednesday, April 16, 2025

CREATORS: What Is Due Process and Why Is It Important?

Matthew T. Mangino
CREATORS
April 15, 2025

As we slide into the second quarter of 2025, if I were to predict the word or phrase of the year, it would be "due process." News stories lament the absence of due process, and talking heads, lawyers, White House aides, judges and journalists relentlessly examine its history and relevance. What does due process mean?

Due process, established by the Fifth and Fourteenth Amendments, guarantee that the government cannot take a person's basic rights to "life, liberty, or property" without giving advance notice and the opportunity to challenge the action in front of an impartial arbiter.

The concept of due process developed centuries before the U.S. Constitution was drafted. Due process is a historical product of the Magna Carta, through which King John of England promised "that [n]o free man would be deprived of his life, liberty, or property except by the lawful judgment of his peers or by the law of the land." The phrase "due process of law" first appeared in a 1354 version of the Magna Carta, "No man ... shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

The Founders incorporated due process into the Fifth Amendment to the U.S. Constitution, "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." At the time, due process only applied to federal matters.

In the wake of the Civil War, the U.S. House of Representatives proposed the Fourteenth Amendment. In 1868, the Fourteenth Amendment was ratified by the states and became part of the U.S. Constitution.

In essence, due process can be encapsulated in a single word — fairness. Due process impacts all of us, even if we are not facing arbitrary imprisonment or deportation.

Due process ensures fair treatment when a homeowner contests property taxes, or a driver fights a traffic ticket, a business seeks a zoning change, an individual seeks unemployment compensation or a student faces discipline.

According to Brandon L. Garrett, Kate Evans and Elana Fogel writing for The Hill, due process is always placed under special stress when people demand quick results without fairness. For instance, a new President wanting to show the nation he is cracking down on criminal gangs and illegal immigrants.

The U.S. government did not provide notice or review before hurrying hundreds of Venezuelan nationals onto planes bound for a notorious prison in El Salvador last month. According to The New York Times, White House aide Stephen Miller has repeatedly asserted that the people deported were not entitled to due process, even though the U.S. Supreme Court recently said the opposite.

David French of The New York Times asked, "How do they know if someone is an 'illegal alien' absent due process?"

French shared, in a recent column, his experience as a soldier deployed to Iraq during Operation Iraqi Freedom. After six of his comrades were killed in a booby-trapped house, a captured man was brought to French and his commanding officer. They determined, after questioning and examination of the relevant evidence, that he was not an enemy combatant.

He was released. French continued, "As he rolled out, though, a soldier turned to me and voiced our shared fear. 'It sure would suck if he actually turned out to be bad and we let him go.'"

"We're not God," French responded. "I can't look into his heart and know the truth, so we have to go by evidence. The evidence makes the decision for us. Was there enough evidence to hold him?"

That is due process. French continued, "(Due process) doesn't just protect a person's liberty and dignity. It's a humble acknowledgment of our own limitations."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit Creators CLICK HERE

Friday, September 13, 2024

Games Police Play, The Pervasive Role of Deceit in American Policing

While at times an effective tool, deception is ethically dubious and can result in severe negative consequences for suspects

Sanctioned by the courts and taught in police manuals, deceptive tactics are employed by virtually every police department across the country, according to a new report by the Cato Institute. Officers seeking to elicit a confession will routinely lie to suspects about the evidence and make statements that imply leniency. While effective at times, deception is ethically dubious and can result in severe consequences for suspects. The United States is an outlier in allowing police to deceive suspects, as the practice is prohibited or highly restricted in most peer nations, including England, France, Germany, and Japan.

First, deceptive interrogation tactics frequently induce false confessions, which are a leading cause of wrongful convictions in the United States. Further, the acceptability of lying to suspects during interrogations seems to encourage deception in other, more troubling contexts. Research shows that testimonial lies, such as perjury in court and falsifying police reports, are commonly employed by officers to secure convictions and circumvent constitutional protections. While such practices remain illegal, testimonial lies are rarely identified or punished. As a result, the justifications and skills cultivated through deceiving suspects in interrogations naturally bleed over into other police work.

Ultimately, the pervasiveness of police deception undermines the integrity and legitimacy of the criminal justice system. It leads to wrongful convictions, weakens civil liberties, and erodes public trust in law enforcement. While there are difficult trade-offs in regulating police deception, its negative consequences require policy responses. Contrary to contentions that deceit is a necessary tool of law enforcement, experiences in other nations suggest that restricting police deception does not hamper criminal investigations. Policymakers should consider measures to curtail police deception, such as requiring that interrogations be recorded, banning or limiting certain deceptive tactics, and increasing judicial scrutiny of interrogation practices.

Introduction

In interrogating a suspect, police often seek to extract an admission of guilt. Officers have found that deceit can be a remarkably effective tool in eliciting confessions from even the most hardened suspects. Since the Supreme Court has put few limits on the practice, the varieties of deceptive techniques police may use are limited chiefly by officers’ ingenuity.1 Officers learn deceptive techniques from interrogation manuals and rely heavily on these practices, often to the exclusion of using other strategies.2

While at times an effective tool, deception is ethically dubious and can result in severe negative consequences for suspects. First, deceptive tactics have been shown to frequently result in false confessions, which are a leading cause of wrongful convictions in the United States. Additionally, training and encouraging officers to lie to suspects during interrogations likely promotes an unduly permissive attitude toward deceitful behavior that carries over into testimonial lying. This includes perjury in court, lying on warrant applications, and falsifying police reports. While lying to suspects in theory (though not always in practice) pursues the truth, testimonial lying subverts justice by creating a false record meant to deceive authorities and courts. Yet from the officer’s perspective, the goal of each type of lie is generally the same: achieving criminal convictions.

Research shows that testimonial lies told by police are commonplace, routinely used to circumvent constitutional protections, and rarely punished due to systemic biases and close relationships between prosecutors, judges, and police. Since officers rarely face consequences for their testimonial lies, the justification for lying and the deceitful skills learned in interrogations naturally spill over to other policing contexts where prevarication remains illegal.

Policymakers may face difficult trade-offs in regulating police deception, but its negative consequences nonetheless require policy responses designed to promote justice, protect civil liberties, and maintain public trust in law enforcement.

To read more CLICK HERE

Wednesday, August 28, 2024

Creators: If Things Are Too Perfect, Then Something Must Be Wrong

Matthew T. Mangino
Creators Syndicate
August 27, 2024

In Waterbury, Connecticut, a police officer detained the driver of a vehicle who had safely pulled to the side of the road to reset his iPhone GPS.

The driver had done everything by the book. Instead of resetting his destination while driving down the road — you know, distracted driving — he pulled to the side of the road. While plugging data into his iPhone, a police officer walked up to his window.

The officer requested his license and registration. The driver turned over the cards, informed the officer that he had a concealed carry permit, showed it to the officer and told him where to find the firearm.

Instead of reviewing the information and saying, "Thanks, have a nice day," the officer ordered the driver out of the vehicle. He was handcuffed and thrown face down in the back seat of the cruiser while his vehicle was searched.

After finding nothing, the officer asked his supervisor, "What should I write him up for?" The trumped-up charges were dismissed and the officer got sued. During the suit, the officer claimed he was protected by qualified immunity, which allows state and local officials to avoid personal consequences related to their professional interactions unless they violate "clearly established law."

The officer claimed he had the legal right to detain the driver and search the vehicle. According to Tim Cushing, writing for Techdirt, the officer actually testified "that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause."

The prosecutor, through the officer's testimony, argued that if things are too perfect, then something must be wrong.

Fortunately, the Federal Court of Appeals for the Second Circuit didn't buy it — but this case could end up before the United States Supreme Court. Eleven years ago, with fewer conservative justices, the high court made the remarkable finding that a suspect cannot invoke the right to remain silent by, well ... remaining silent.

The case, Salinas v. Texas, arose from the murder of two men in Houston. The police found shotgun shells discarded at the crime scene.

The police questioned Genovevo Salinas, who was said to have attended a party at the victims' apartment. When Salinas met with police, he was not under arrest. He voluntarily submitted to questioning and was free to leave the police station at any time.

He answered questions for almost an hour, but when asked by police if the shotgun shells found at the murder scene would match a shotgun found in Salinas' home, he stopped talking.

The police made a record of Salinas' conduct once he stopped talking. According to the Supreme Court opinion authored by Justice Samuel A. Alito Jr., Salinas "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court agreed, finding that silence is not enough to invoke the right to remain silent.

When the Salinas case was argued, his attorney suggested that it would be unfair to require a suspect untrained in the law to do anything more than remain silent in order to invoke his "right to remain silent."

The Supreme Court has made the right to remain silent more complicated, and it will require those accused of a crime to be more informed about their rights and, more importantly, the decision will require an accused, under enormous pressure, to articulate the desire to invoke those rights.

The Connecticut case presents the same dilemma for someone falsely accused of wrongdoing. Would a person need to know if and when his statement or conduct is too perfect? Should a suspect be worried that his cooperation may lead to an officer's "reasonable suspicion"?

A suspect who encounters the police and worries his explanation is too good may become nervous, fail to maintain eye contact, or awkwardly shift in his seat. Maybe a bead of sweat forms on his upper lip — accepted indicia of lying.

Are we evolving into a country where a suspect who has done nothing, and admitted nothing, can be convicted of a crime?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit Creators CLICK HERE

Saturday, February 17, 2024

Conversation at police station between suspects not protected by Miranda

The US Court of Appeals for the Eleventh Circuit reinstated a Florida man’s conviction, following a challenge that the police department violated the man’s Miranda rights, reported Jurist.

Jimmie Bowen was arrested for his alleged involvement in gang related violence. After being advised of his Miranda rights, Bowen invoked his right to counsel. Some time after, Bowen was moved to a new interrogation room with another suspect who had waived his Miranda rights. The suspects began discussing the event and revealed incriminating information, which was being recorded by police.

Bowen moved for these statements to be suppressed, arguing that placing the two suspects in the same room was an interrogation, violating his Miranda rights. Once a suspect invokes his right to counsel, the police are not allowed to continue interrogations without counsel being present. The incriminating statements were used at trial and Bowen was convicted.

The appeals court disagreed with Bowen, stating “Miranda does not require a warning, or otherwise impose restrictions, anytime police speak with someone–even if that someone is a suspect. Instead, its protections apply only in custodial interrogation.” The court went on to state that this was not a custodial interrogation, as Bowen spoke to the other suspect “because he wanted to,” and knew he could refuse.

To read more CLICK HERE

Friday, December 22, 2023

Suspect can refuse to disclose cellphone passcode under Fifth Amendment

A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled, reported the ABA Journal.

In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.

The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.

Ars Technica and the Salt Lake Tribune have coverage, while the Legal Profession Blog has highlights from the opinion.

Valdez’s ex-girlfriend told police that she agreed to meet Valdez outside her workplace after he said in a text he had some of her mail and wanted to give it to her. When the ex-girlfriend walked up to Valdez’s SUV, he pointed a gun at her and told her to get in his vehicle, she said. After she complied, Valdez allegedly assaulted her.

The defense claimed that the interaction was consensual.

Police weren’t able to locate the ex-girlfriend’s cellphone after the incident, but they seized Valdez’s cellphone to verify that he had sent the text. Police obtained a warrant to acquire the cellphone contents.

The Fifth Amendment’s privilege against self-incrimination applies when a communication “is compelled, testimonial and incriminating,” the Utah Supreme Court said. On appeal, the state conceded that the password was compelled and incriminating but claimed that it was not testimonial in nature.

Providing a passcode, the state argued, is not a testimonial communication because it is like handing over a physical key, a nontestimonial act. The Utah Supreme Court disagreed.

Providing a cellphone passcode is testimonial and would explicitly communicate information from the suspect’s mind, making the revelation testimonial in nature, the state supreme court said.

The state also argued that, even if the password is testimonial, the Fifth Amendment does not apply under the “foregone conclusion” exception. It was a foregone conclusion that Valdez owned the phone and knew the password, the state argued, so turning over the passcode would disclose what police already knew.

But the foregone conclusion exception applies only in cases considering whether an “act of production,” such as turning over documents, has testimonial value, the Utah Supreme Court said. At issue is whether the act of production is testimonial in nature, as when producing the documents amounts to a concession that the documents exist and are controlled by the suspect.

“But here,” the Utah Supreme Court said, “we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable.”

The state supreme court acknowledged that the “analytical framework” would be different if Valdez had been asked to hand over an unlocked cellphone, which would be a compelled act of producing evidence.

The Utah attorney general’s office told the Salt Lake Tribune in a statement that it is disappointed in the ruling and “is evaluating options for further review.”

In a post at the Volokh Conspiracy, Orin S. Kerr, a professor at the University of California at Berkeley School of Law, said the decision “might be a good candidate for U.S. Supreme Court review” to clear up the “total mess” of lower court decisions on the issue. The state supreme court had cited Kerr’s law review articles in its opinion.

Weighing against cert, however, is that Valdez’s case concerns compelled disclosure of a password, rather than compelled unlocking of a cellphone. If the Supreme Court was to accept the case, “it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day,” Kerr said.

The case is State of Utah v. Valdez.

To read more CLICK HERE

Saturday, September 9, 2023

Recent Pa. Supreme Court Case Tackles Pre-Arrest and Post-Arrest Silence

Matthew T. Mangino
The Legal Intelligencer
September 7, 2023

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Most Americans can recite the Miranda warnings verbatim—not because of the power and substance of some high school civics class—but because of television crime dramas. The Miranda warnings are etched into our psyche, “You have the right to remain silent …” However, that iconic first line is not as clear as one might think.

This summer the Pennsylvania Supreme Court issued an important decision regarding the Fifth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. The language of the Pennsylvania and U.S. Constitutions are quite similar, but not identical. In Pennsylvania the Constitution provides, “The accused … cannot be compelled to give evidence against himself.” The Fifth Amendment provides, “No person … shall be compelled … to be a witness against himself.”

The Pennsylvania Supreme Court decided Commonwealth v. Rivera, 22 MAP 2022, on June 21. If you are a constitutional “geek” you’ll feel as though you stumbled upon a pot of gold. This opinion examines a defendant’s silence in the context of pre-arrest and post-arrest; harmless error; a lack of curative instruction; credibility and split verdicts.

Jonathan Rivera was accused of the rape of several children. He was accused by four females and went to trial. At trial the prosecutor asked a testifying police officer: “After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?” Over the objection of the defense counsel, the police officer was ordered to answer. The officer said “He [Rivera] did not deny.” All in all, the officer was asked four different ways if Rivera denied the allegations and each time the officer answered in the negative.

The jury returned a split verdict finding him not guilty on the most serious charges. On appeal, Rivera argued that the trial court erred by permitting the testimony regarding his post-arrest silence. Rivera suggested that the testimony of his silence “irreparably undermined his credibility in the eyes of the jury.”

The prosecution argued that the defense briefly inquired into the defendant’s pre-arrest silence and that opened the door to the prosecution’s questions. The prosecutor’s questions were a fair response to the defense counsel’s questioning. The Pennsylvania Superior Court disagreed and ruled the prosecution’s questions of silence were admitted in error.

However, that’s where the wheels came off at the Superior Court. The court found the “trial court’s error was harmless because the prejudice to Rivera, if any, was de minimis.” The problem with the Superior Court’s finding, according to the Supreme Court, was that the court relied on decisions relating to pre-arrest silence, instead—as in Rivera’s case—the issues of one of post-arrest/post-Miranda silence. In Rivera, the Supreme Court ruled, “Undeniably, the four questions the prosecutor asked here related to Rivera’s post-arrest, post-Miranda silence.”

 

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Why is the commonwealth’s reference to post-arrest silence innately prejudicial? Most people believe a person falsely accused of a crime would bitterly protest their innocence or without hesitation challenge any accusation against them.

The same is often thought when a suspect displays little emotion in the wake of the suspicious loss a spouse or child.

We know that neither is necessarily indicative of guilt. People dealing with a loss or confronted with arrest react in different ways. The shock of such a trauma could simply be dealt with by silence—neither should be easily accepted as an admission of guilt.

Although the Supreme Court acknowledged that the court has struggled to create a uniform rule to govern references to pre-arrest silence—the case before the court was not the case to address that issue. The court wrote, “We need not square the circle here.”

According to the Supreme Court, the court first took up the issue of post-arrest silence more than a half century ago. In Commonwealth v. Haideman, 296 A.2d 765 (Pa. 1972), the Supreme Court held, “Testimonial reference to an accused’s silence … at the time of arrest is … constitutionally impermissible.”

The court in Haideman pointed out that even Miranda v. Arizona, 384 U.S. 436 (1966), forbids the prosecution from “introducing at trial the fact that the accused ‘stood mute or claimed privilege.’”

The Supreme Court also explored Commonwealth v. Greco, 350 A.2d 826 (Pa. 1976), “I advised him … that he had the right to remain silent and he didn’t actually make any statement …”; Commonwealth v. Singletary, 387 A.2d 656 (Pa. 1978), “And on advice of counsel, you made no statement concerning the case?”; and Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), “Did you ever tell the police that somebody was shooting at you?”

None of these decisions relied on by the Supreme Court were cited by the Superior Court in their Rivera decision.

In each of the above decisions, the Supreme Court granted the defendant a new trial. The court noted, “This court has repeatedly signaled to the commonwealth that referencing a defendant’s post-arrest silence may imperil an entire case.” The court went further, “We have often deemed a single such reference—answered or not, curative instruction or not—offensive enough to the constitution and the principles it embodies as to call for a new trial.”

The last question addressed by the Supreme Court, now that it was clear that the testimony of Rivera’s post-arrest silence was admitted in error, was whether the error was harmless. The court looked to Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014). There are three prongs to the Hairston harmless error test. First, did the error prejudice the defendant or was the error de minimis?

The court quickly disposed of the first prong—the Superior Court had reviewed the case as pre-arrest silence when it was clearly post-arrest silence.

The second prong related to whether the error was merely cumulative. The commonwealth did not even argue that the testimony of the police officer regarding Rivera’s post-arrest silence was cumulative of other evidence presented in the case.

The third prong provides that the commonwealth must prove beyond a reasonable doubt that “properly admitted and uncontracted evidence of guilt was so overwhelming and the prejudicial effect of the error was insignificant …”

The court found that due to the lack of physical evidence, credibility was central to this case “It is not improbable that the admission of this testimony might have contributed to the conviction.” The court also pointed out the absence of a clear curative instruction by the trial judge and the spit verdict by the jury all contributed to the finding that “the allowance of the constitutionally impermissible testimony here was not harmless.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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Thursday, July 1, 2021

Cosby walks, PA Supreme Court overturns his conviction

 After spending three years behind bars, the Pennsylvania Supreme Court on Wednesday overturned the sexual conviction of comedian and actor Bill Cosby.

In its ruling, the state’s highest court said former Montgomery County District Attorney Bruce Castor’s decision not to charge Cosby in 2005, freeing Cosby to testify in a subsequent civil suit without his Fifth Amendment protection against self-incrimination, allowed another prosecutor to try him, according to court documents.

Cosby had relied on the former prosecutor’s decision not to charge him when the comedian gave his potentially incriminating testimony in the civil case, the Associated Press reported.

Cosby, now 83, was convicted in 2018 of drugging and sexually assaulting a woman in 2004, and had been sentenced to three to 10 years in prison, according to CNBC. In a ruling authored by Justice David Wecht, the high court ruled that he could not be tried twice for the same charge.

“When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade,” the high court ruled.

“For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged,” the decision reads.

Justices Debra Todd, Sallie Mundy, and Christine Donohue joined Wecht in the opinion. Justice Kevin Dougherty concurred in part of the opinion and dissented in part. He was joined by Chief Justice Max Baer. Justice Thomas Saylor filed a dissenting opinion.

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Thursday, February 4, 2021

Minnesota sex offender wants Fifth Amendment protection in treatment

The Minnesota Supreme Court heard arguments in the case of a man who claims sex-offense confessions made to his probation officer as part of a court-mandated program are protected by the Fifth Amendment, reported the Courthouse News Service.

Adam McCoy’s appeal highlights a potential conflict between the state’s rehabilitation programs for sex offenders, their requirements of full disclosure and the constitutional rights of those offenders.

McCoy was charged in 2019 with two counts each of first-degree and second-degree criminal sexual conduct for the 2005 assault of his 2-year-old stepdaughter. A district court granted McCoy’s motion to suppress the statements that gave rise to the charges, which he made to his probation officer and a polygraph examiner during treatment mandated by a court as part of his probation for another sex offense.

The court ruled that the statements, in which McCoy detailed an assault of his stepdaughter along with other unidentified victims, were inadmissible because they violated his right against self-incrimination under the Fifth Amendment of the U.S. Constitution.

The case was dismissed, but prosecutors won a reversal in the Minnesota Court of Appeals, which found that because McCoy’s disclosures were not compelled because he did not assert his right against self-incrimination before filling out a detailed questionnaire and taking a polygraph test, and was informed that the examiner and probation officer were mandatory reporters.

McCoy’s lawyer, Zachary Johnson of Park Rapids, Minnesota law firm Thomason, Swanson & Zahn, argued Tuesday morning that his client had been trapped in a Catch-22. Without an attorney present, he said, McCoy should not have been expected to know what statements could be incriminating.

“It should not be up to the individual probationer to know where to draw the line,” Johnson said. “The question of whether something is incriminating or not is often a legal question or an investigative question, and often we’re not dealing with sophisticated parties.”

He added that a decision that the ostensibly rehabilitative treatment process can be used to prosecute offenders could lead Minnesota defense attorneys to advise their clients not to participate in sex offender treatment at all.

“Every lawyer would have to advise their clients to participate in sex offender treatment at their own peril,” he said. “No probationer in his right mind would ever agree to cooperate with that.”

Johnson also sought to distinguish McCoy’s case from State v. Murphy, a 1983 case in which the Minnesota Supreme Court decided that the Fifth Amendment does not make statements to a probation officer about crimes unrelated to the probation inadmissible if the probationer does not assert his right to avoid self-incrimination.

“The nature of this encounter was incredibly different than what happened in Murphy. In Murphy, we had a normal probation interview,” Johnson said. “That’s different here, and I think the court can see the difference.”

The state, meanwhile, argued that Murphy was an appropriate precedent to apply. Cass County Attorney Ben Lindstrom, whose jurisdiction lies in the north-central part of Minnesota, pointed out that, like in Murphy, McCoy volunteered the information without being threatened with breach of probation, imprisonment or any other penalty.

“The appellant was never told that he needed to provide information that would incriminate him. As a matter of fact, the polygraph provider was very clear on that, ‘don’t provide us incriminating information,’” Lindstrom said, adding that pleading the Fifth is a legitimate excuse under the rules of probation.

Much of the court’s questioning surrounded whether a threat was implicit in the requirement of a full-disclosure polygraph, especially in light of the fact that McCoy was not read his Miranda rights ahead of time.

“How should we be defining threat?” Chief Justice Lorie Gildea asked Lindstrom.

The prosecutor argued that threats, in this case, would have to be unlawful actions, and that the possibility of a probation violation didn’t qualify.

“I would distinguish consequences from threats,” he said. “I would distinguish the lawful imposition of a consequence versus the unlawful imposition of a consequence.”

Justice Paul Thissen also pondered aloud whether the issues presented by McCoy’s case could be better resolved by amending Minnesota’s rules of evidence to clarify when and whether statements like his could be admitted.

Justice Barry Anderson poked at Johnson’s effort to set his client’s case apart from Murphy, drawing out a sideswipe against Lindstrom.

“This issue’s been around a while, and Murphy’s been around a while, and I don’t see any indication that the roof is falling in,” Anderson said.

Johnson agreed, with a major caveat.

“The reason why you haven’t seen the sky falling in… is because these prosecutions should be rare,” he said. “Many prosecutors in the state, the idea of prosecuting a crime on the basis of these statements is just something they would not choose to do.”

“These prosecutions should be relatively rare. I would hope they would be, at least,” he added. “But now that we are faced with one, it could be a case where bad facts make bad law.”

Minnesota’s sex offender rehabilitation process has been at the center of several controversies in recent years, many of them focused on the state’s civil commitment program for offenders deemed to be sexually dangerous persons.

A federal judge’s 2015 order requiring the state to create pathways to release for committed offenders was overturned by the Eighth Circuit two years later, but releases have become slightly more common regardless. Before 2015, no one had ever been fully released from the program in its 20 years of operation, and only three people had been conditionally released.

Since then, 13 detainees have been fully released, and 11 were conditionally released in 2020. Those numbers are still dwarfed by the approximately 740 current detainees and the 86 who have died in the program’s custody.

McCoy was not civilly committed at the state’s sex offender treatment facility in Moose Lake, but Mitchell Hamline School of Law professor Eric Janus said his dilemma is not unlike ones faced by many of those offenders. Janus leads the St. Paul law school’s Sex Offense Litigation and Policy Resource Center, and has written critically about Minnesota’s program.

“Certainly, this whole area is fraught, because obviously on the one hand, full disclosure and telling the truth is critical in terms of sex-offender treatment. You’ve got that notion kind of in conflict with the idea that full disclosure can be self-incriminating,” he said.

“That information can be, and often is, used if there’s a sex offender civil commitment proceeding brought,” he added. “And that’s problematic from the perspective of the individual, but it’s also problematic because it creates a disincentive for people to participate in treatment.”

All in all, he said, sex-offender treatment is an admirable goal, but hitches like McCoy’s can make it difficult for offenders to go through the program without fear of consequences.

“We’re pretty sure that participating in sex-offender treatment is a positive thing. It’s helpful, in terms of helping people reenter society. It’s just a conundrum,” he said. “And when you couple that with mandatory reporting laws, even in situations where normally one would expect some confidentiality… these mandatory-reporting laws often mean that the expectation of confidentiality is violated.”

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Saturday, December 12, 2020

MCN: Few criminal trials feature the defendant’s testimony

Matthew T. Mangino
More Content Now
December 11, 2020

Why do so few men and women charged with a crime exercise their constitutional right to testify in their own defense?

The answer is complicated.

Let’s start with the fact that in state and federal courts only a small percentage of cases even go to trial. According to the Pew Research Center, in 2018 nearly 80,000 people were prosecuted in federal criminal court - only 2% went to trial.

Choosing to go to trial can be a risk. One concern is the “trial penalty,” a widely lamented tool of prosecutors used to punish people who go to trial more harshly than similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive in state and federal courts, that defendants weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence.

Once that seemingly bold, and exceedingly rare, decision to go to trial is made, a whole host of other issues must be considered. The decision to testify is a strategic one. It wasn’t long ago when defense attorneys made the decision about whether their clients would testify. In 1987, the U.S. Supreme Court changed all that, when it decided that the decision to testify was a “personal and fundamental constitutional right.”

The government has the burden of proving a defendant guilty beyond a reasonable doubt - the defendant has no obligation to prove anything.

That is the law, but there are times the jury wants to hear the defendant’s side of the story. There are risks that come with testifying. A defendant’s criminal record, which may otherwise have been kept from the jury, can be used to impeach the defendant’s credibility if he or she takes the witness stand.

Professor Anna Roberts of Seattle University Law School wrote in a 2016 law review article, “A recent study of DNA exonerees revealed that, despite their factual innocence, 91% of those with prior convictions waived their right to testify at trial. The most common reason given by their counsel was the fear of the impact of impeachment.”

According to Roberts the fear was justified “allowing the jury to learn of a defendant’s criminal record increases the rate of conviction by as much as 27%.”

Testifying in front of a robe-draped judge, in an ornate courtroom, in front of 12 strangers who will decide your fate can be daunting. What kind of witness will the defendant make? Is the defendant friendly? Is she articulate? Does she understand the gravity of the situation? Does she have a temper or tendency to fly off the handle?

No matter how well prepared to testify, a defendant will be subject to cross-examination. The process can be grueling and can reveal holes in the defendant’s story that can result in a conviction.

The other option for a defendant at trial is silence. A silent defendant can leave a jury wondering why the defendant didn’t refute the charge - although a defendant has no obligation to present an alternative to the prosecution’s case.

More importantly, the defendant who remains silent loses an opportunity to win over the jury.

In a 2008 study, Daniel Givelber and Amy Farrell found an increase in the percentage of acquittals when the jury heard from the defendant. When a jury heard from both the defendant and other witnesses on the defendant’s behalf, the acquittal rates rose substantially.

To testify, or not to testify, is the question - the answer is ... complicated.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Wednesday, June 24, 2020

The slowly eroding protections of Miranda v. Arizona

Jay Willis examines the eroding protections of Miranda v. Arizona for The Appeal. Here is an excerpt from Willis' commentary:  A few years later, the newly elected President Richard Nixon set about the task of overhauling what was, to date, the most progressive Supreme Court in history. Within his first three years in office, Nixon managed to replace four of the Warren Court’s justices and installed a reliable conservative, Warren Burger, as chief. The Court has not had a true liberal majority since.
This increasingly reactionary Court quickly embraced the spirit of the Miranda dissents. In 1971, the Court said in Harris v. New York that prosecutors could use illegally obtained confessions to discredit a defendant’s testimony, even if they couldn’t use it as evidence of their guilt. For example, if a murder suspect said before receiving the warning that he pulled the trigger, and later blamed someone else, a prosecutor could tell the jury about a confession that Miranda would otherwise keep out of the courtroom. “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense,” Burger wrote.
Creating this loophole, said Justice William Brennan in dissent, undid “much of the progress made in conforming police methods to the Constitution.” “It is monstrous that courts should aid or abet the law-breaking police officer,” he wrote. 
Almost ten years later, the Court further weakened Miranda in Rhode Island v. Innis when it clarified what counts as an “interrogation.” After Providence police arrested Thomas Innis on suspicion of armed robbery, Innis said he wanted to talk to an attorney. As a trio of officers drove him to the station, two of them began talking—ostensibly just to one another—about the crime scene’s proximity to a school for students with disabilities, musing about how terrible it would be if kids were to find the missing shotgun first. (“God forbid,” one said.) Innis, apparently overcome with anxiety, interrupted their conversation and led them to the gun. 
In court, Innis argued that this charade violated his Miranda rights, since it took place despite his request for a lawyer. The justices agreed that “interrogation” includes actions that police “should know are reasonably likely” to elicit a response. Incredibly, however, they decided that Innis was not “interrogated,” even under this seemingly broad definition. Since the officers weren’t aware that Innis was “peculiarly susceptible” to concerns for the safety of disabled children, the Court said, they couldn’t have known their performance would prompt him to talk.
This is, as Justice Thurgood Marshall argued in dissent, ludicrous. Appeals to “decency and honor” are common interrogation techniques, and stage-whispering about small children dying by shotgun blast was more than “reasonably likely” to get Innis to talk—it was a dramatic ploy designed to accomplish that exact result. As Justice John Paul Stevens dryly noted in a separate dissent, the decision basically gives police a green light to ignore requests for lawyers, “so long as they are careful not to punctuate their statements with question marks.”
Perhaps the most absurd Miranda cases weaponize the warning’s first and most famous guarantee—the right to remain silent—against suspects who try to invoke it. In the 2010 case of Berghuis v. Thompkins, police presented Van Chester Thompkins, a suspect in a murder, with a written summary of his Miranda rights. Thompkins, perhaps wary of signing anything the police asked him to, refused to sign a form to acknowledge that he understood those rights, and offered only occasional, cursory responses during an agonizingly lengthy interrogation that followed. One of the officers who conducted the interview described it as “very, very one-sided,” and “nearly a monologue.”
Finally, after about two hours and 45 minutes of sporadic yeses, nos, and head nods, an officer asked Thompkins if he ever prayed to God for forgiveness for shooting the victim. Thompkins choked up, said “Yes,” and looked away. Based in part on his purported admission, he was tried, convicted, and sentenced to life in prison without the possibility of parole.
In Miranda, Chief Justice Warren had said that police must stop asking questions if a person indicates “in any manner” a desire to remain silent. In Thompkins, the Court flipped that principle on its head. Writing for the five conservatives, Justice Anthony Kennedy explained that silence, by itself, was not enough to invoke the right to remain silent; instead, suspects must assert it “unambiguously.” He also decided that here, police reasonably concluded that Thompkins’s one-word answer—after enduring nearly three hours of one-sided questioning—indicated a desire to waive his rights.
This logic ignores the realities of race, class, and power that were so important to Warren’s reasoning in Miranda. “Ample evidence has accrued that criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence,” Justice Sonia Sotomayor wrote in dissent; they are in an unfamiliar environment, probably handcuffed, afraid of what might happen if they don’t cooperate. Even if police insist they aren’t technically under arrest, they may not feel they can actually leave, especially if they are Black or Latinx. And even if they know about the Fifth Amendment’s guarantees, they may not feel safe trying to bring them up, let alone in a manner police deem sufficiently clear. Thompkins uses justifiable feelings of powerlessness to render people, in fact, powerless. 
The decision, Sotomayor warned, would encourage police to “question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response.” She also pointed out the cruel irony of this standard: To exercise the right to remain silent, the Supreme Court now requires you to speak.
In 2013, the Court extended the Thompkins logic even further, holding in Salinas v. Texas that if a person who isn’t in custody doesn’t answer a police officer’s questions, that silence can be used against him in court later unless he expressly invokes his Miranda rights—rights that police haven’t even read to him yet. As Justice Stephen Breyer put it in a frustrated dissent: “How can an individual who is not a lawyer know that these particular words are legally magic?” 
In response, Justice Samuel Alito argued in his majority opinion that treating silence as an exercise of the right to silence would “needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity.” But by instituting a police-friendly rule instead, the Court made a deliberate choice to privilege the interests of police over the interests of people under their control. When Justice Harlan warned 47 years earlier that Miranda would endanger “society’s” welfare, his definition of society plainly did not include the untold number of people who would end up in jail because they were duped by police.
Underlying each of these cases is a consistent theme: the justices’ faith in police to scrupulously follow rules and refrain from abusing their power. There is little evidence that this trust is well-placed.
In the 1984 New York v. Quarles decision, for example, police found a handcuffed suspect’s empty holster and asked him where the gun was. Although officers hadn’t read Quarles his rights, the Court decided that the gun and his statements about it could be used at trial. Under the circumstances—as in Innis, a missing gun waiting to fall into the wrong hands—the Court explained that complying with Miranda would put police in the “untenable position” of choosing between protecting and serving on the one hand, and safeguarding civil rights on the other.
For police, this creates a readily apparent, perverse incentive: to ask questions before giving Miranda warnings in the name of “public safety.” It allows them to cut constitutional corners based on the supposed exigencies of the moment. 
The Quarles majority acknowledged this concern, but just as quickly waved it away, asserting that, more or less, everything will naturally work itself out. “We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence,” wrote Justice William Rehnquist. This is an astoundingly credulous assessment of the restraint of the police, an institution whose willingness to resort to trickery, deception, and occasionally literal torture made the Miranda warnings necessary in the first place.
In a sometimes-blistering dissent, Justice Marshall excoriated the Quarles majority for subjecting the rule against coerced confessions to a crude cost-benefit analysis. “The majority should not be permitted to elude the [Fifth] Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue,” he wrote.
Not every instance of official deception survives judicial review. In 2004, the Court struck down an especially brazen procedure in which police would first ask questions, then give Miranda warnings, and finally ask suspects to repeat the answers they had just given—this time for the record. Writing for a four-justice plurality, Justice David Souter referred to this strategy as one “adapted to undermine” Miranda, and argued that no reasonable person would have understood they had a choice about whether to talk. 
But the impact of the Court’s war on Miranda is on the millions of unseen interactions that take place in interrogation rooms and squad cars—cases that will never make it to a courtroom, where a judge can belatedly rescue a wronged person from the state’s abuse. By putting itself in the shoes of police instead of the people harmed by police misconduct, the Court tips the balance of power in the direction of law enforcement, punishing people for not knowing what to say once the cuffs are on, unmoved by the consequences of reflexively giving cops the benefit of the doubt. Letting police push the envelope basically ensures that they will sometimes push too far, and get away with it without anyone ever finding out.
Today’s Court looks nothing like the one that decided Miranda: It is dominated by doctrinaire conservatives whose movement’s fondness for law-and-order politics cannot be disentangled from their jurisprudence. Justice Clarence Thomas, for example, is notorious for his indifference to the plight of poor, incarcerated, or otherwise vulnerable people. In 1992, he opined that Louisiana prison guards’ brutal beating of a prisoner was not cruel and unusual punishment because the injuries the man suffered weren’t “serious” enough. In a 1985 job application, Alito boasted that his interest in law stemmed from, in part, his “disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” among others. Now, as a justice, he has the power to help peel back those decisions himself.
The justices’ collective work experience also informs this Court’s anti-defendant bent. Perhaps the surest career path to becoming a judge, other than being an officer in an Ivy League law school’s Federalist Society chapter, is to work as a prosecutor first. This is not a partisan phenomenon: Alito was the U.S. Attorney for the District of New Jersey, while Sotomayor spent several years as an assistant district attorney in New York City. According to a 2019 study conducted by the libertarian Cato Institute, 38.1 percent of surveyed federal judges came to the job with prosecutorial experience. In lower federal courts, former prosecutors outnumber former defense lawyers by a ratio of 4 to 1.
Not all prosecutors are the same, of course; in her opinions, Sotomayor has consistently demonstrated far more empathy for defendants than Alito and his fellow conservatives. But when ex-prosecutors are so well-represented among the ranks of judges, it means that a disproportionate number of people making decisions about defendants’ rights do so from the perspective of someone for whom successful assertions of those rights were once professionally inconvenient. 
By contrast, no sitting justice has meaningful criminal defense experience; Marshall, the last one who did, stepped down in 1991. “You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court,” the Washington Post’s Radley Balko wrote in 2015, in an assessment unaffected by the Court’s recent turnover. Attempts to address this deficiency can make for easy fodder for law-and-order Republicans looking to scuttle a nomination. When federal appeals court judge Jane Kelly appeared on President Obama’s Supreme Court shortlist in 2016, a right-wing activist group quickly spent a quarter-million dollars on ads smearing her for her prior work as a public defender. In the United States, only one side of the criminal legal system gets treated as working in the public interest.
The purpose of Miranda was, as Chief Justice Warren wrote, to protect “human dignity,” ensuring that the existence of fundamental rights did not depend on the legal acumen of the person exercising them. But the Supreme Court has spent decades systematically hollowing out the decision’s promise, even as the federal judiciary’s rightward shift made the legal system less hospitable for criminal defendants. Today, only people who know their Miranda rights—and exactly what to say and do to invoke them—can hope to enjoy the protections they provide. Everyone else is on their own.
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Saturday, March 28, 2020

GateHouse: DOJ seeks to curtail rights during health emergency

Matthew T. Mangino
GateHouse Media
March 27, 2020
In the face of a surging COVID-19 pandemic, the U.S. Department of Justice has asked Congress for the ability to detain people indefinitely without trial, to extend the statute of limitations in criminal cases and limit the constitutional right to confrontation.
There is no question that the nation is facing an unprecedented emergency, but now, especially now, is not the time to ignore the U.S. Constitution.
At stake are three fundamental rights that are afforded all persons accused of a crime - the right to a speedy trial, the government’s responsibility to file charges within a reasonable, statutorily established, period of time, and the right to confront one’s accuser.
A defendant’s right to a speedy trial has constitutional and statutory underpinnings. The Sixth Amendment provides, through the Speedy Trial Clause, that an accused formally charged or detrained pretrial is entitled to have his case heard with reasonable diligence. Rule 48 of the Federal Rules of Criminal Procedure grants trial courts discretion to dismiss cases that are not brought to trial promptly.
The reason for a speedy trial rule is to prevent the government from arresting an accused and letting him or her languish in jail without being proven guilty. During this health emergency it is important to bring pretrial detainees to trial as quickly as possible or let them out of jail until trial.
The Constitution grants people habeas corpus which gives the accused the right to appear in front of a judge and ask to be released before trial. Adopting Attorney General William Barr’s recommendations would essentially suspend habeas corpus indefinitely until the emergency ended. However, Article I, Section 9, Clause 2 of the U.S. Constitution provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion ...” A national health emergency is not listed as a reason to suspend habeas corpus.
Federal statutes of limitations provide a time frame within which charges must be filed. For instance, in state court the statute of limitations might be two years for a misdemeanor theft. If charges are not filed within two years of the date of the crime the charges are forever barred.
Such limitations are a product of the Fifth Amendment Due Process Clause. The purpose and effect of a statute of limitations is to protect defendants. The statute is based on the premise that if the government has a case they should pursue it with reasonable diligence. A delay could result in the defendant losing evidence necessary to disprove the claim; and litigation of a long-dormant accusation may result in an injustice.
The justification for extending the statute of limitations is that due to the health emergency the police are too busy and the courts may be closed - so the statute should be extended to pursue untimely cases. If those cases were butting up against the statute before the emergency, they have already been delayed for nearly two years or five years or longer depending on the alleged criminal conduct.
Instead of a blanket extension, the court should conduct a hearing to determine if prosecutors used due diligence to bring the case to trial before the health emergency and then, as swiftly as possible, after the emergency.
Finally, the Sixth Amendment guarantees the right to confront the witnesses against the accused. This right is known as the Confrontation Clause. This clause guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony.
The right to confront witnesses face-to-face is a fundamental right for those accused of a crime. The DOJ wants to use videoconferencing to permit a defendant in jail to participate in a proceeding remotely. Remote hearings are already being utilized for bail and extradition, but not for “critical stage” proceedings.
The idea of conducting a critical stage hearing without the defendant being present is extreme. In fact, some states had to amend their state constitutions to permit child victims to testify by video conferencing - outside the presence of the defendant.
Congress needs to proceed with caution. Setting aside fundamental constitutional rights for any reason is dangerous.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Sunday, December 15, 2019

PLW: Password Ruling and Technology: Court Looks to Protect the Innocent

Matthew T. Mangino
The Legal Intelligencer
December 12, 2019
Last month, the Pennsylvania Supreme Court ruled that it is a violation of the Fifth Amendment’s protection against self-incrimination to compel a defendant to disclose a password to allow police access to a “lawfully seized, but encrypted, computer.”
In 2015, the attorney general’s office was conducting an investigation into the use and distribution of child pornography. The attorney general sought a search warrant for Joseph J. Davis’ home after his IP address was linked to child pornography videos and a file-sharing network. Davis admitted to watching child pornography, and law enforcement officials lawfully seized his computer. However, he refused to provide the 64-character password to his computer.
According to the court record, the entire hard drive of the computer was encrypted and “there was no data that could be read without opening the TrueCrypt volume.”
Agents could only confirm that there was “Windows on the computer and the TrueCrypt,” and no knowledge of any specific files other than the operating system files.
Davis was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. Section 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. Section 7512(a).
The commonwealth sought a court order to compel Davis to reveal his password. Davis invoked his Fifth Amendment right against self-incrimination. The Fifth Amendment to the U.S. Constitution guarantees a defendant the right not to incriminate himself. That means individuals cannot be forced to make statements, or testify, against their self-interest. 
Luzerne County Court of Common Pleas Judge Tina Gartley focused on whether turning over the password would be testimonial.
The Fifth Amendment protects communication by defendants that is “testimonial.” The trial court opined that “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind to explicitly or implicitly communicate some statement of fact.’”
The trial court then turned to the “foregone conclusion” exception to the Fifth Amendment. In Fisher v. United States, 425 U.S. 391 (1976), the U.S. Supreme Court established the rationale underlying the foregone conclusion doctrine. The court ruled that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual “adds little or nothing to the sum total of the government’s information.” Since Davis admitted to watching child pornography videos and that he is the sole owner of the computer, the trial court held that the exception applied. The Superior Court affirmed.
The case made its way to the Pennsylvania Supreme Court in May. Prosecutors argued that, “The commonwealth does not seek the password to establish or prove a connection between Davis, his computer and its contents because it already has that information. It merely seeks surrender of the password in order to open the lock that Davis has placed on the computer to avoid a lawful search.”
The Supreme Court acknowledged that “at times, constitutional privileges are an impediment to the commonwealth—requiring the commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult.”
That difficult burden is no reason to circumvent the rights and privileges afforded an accused by the U.S. Constitution.
The Supreme Court concluded that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Revealing a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a hand writing sample, blood draw or a voice exemplar. As a password is necessarily memorized, one cannot reveal a password without revealing the contents of one’s mind.
In 1990, Justice John Paul Stevens wrote in a dissent in Doe v. United States, 487 U.S. 201 (1990), “A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens or other items of physical evidence may be extracted from a defendant against his will.” Stevens continued, “but can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.”
In 2000, the Supreme Court decided United States v. Hubbell, 530 U.S.23 (2000) involving an issue of Fifth Amendment privilege for a defendant who became intertwined in the “Whitewater” witch hunt targeting Bill and Hillary Clinton. The court explained why a grand jury subpoena requiring a man to assemble self-incriminating documents was improper:
It was unquestionably necessary for the respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.
The Pennsylvania Supreme Court borrowed the metaphor raised in Doe and Hubbell to emphasize its holding. A footnote to the opinion contained the following passage, “Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose―keeping information contained therein confidential and insulated from discovery. Here, under U.S. Supreme Court precedent, we find that the commonwealth is seeking the electronic equivalent to a combination to a wall safe—the passcode to unlock the appellant’s computer. The commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld.”
In the 27-page majority opinion, Commonwealth of Pennsylvania v. Davis, 56 MAP 2018, Nov. 20, 2019, written by Justice Deborah Todd, the high court acknowledged “the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption.”
However she wrote, “This constitutional right is firmly grounded in the realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘protection to the innocent.’”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. Contact him at www.mattmangino.com, matthewmangino@aol.com and follow him on Twitter @MatthewTMangino).
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