The U.S. Supreme Court has recognized “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” This is as true for defendants facing charges of robbery and extortion as for those charged with tax evasion, embezzlement, or securities fraud. Indeed, research has previously shown that nearly 97% of all federal convictions are secured through plea agreements—not jury verdicts.

Against this context, it is noteworthy that the Court recently declined to resolve a lingering circuit split involving the right of defendants to have their counsel seek such plea agreements. Specifically, the Court was asked to consider whether a defense attorney’s failure to pursue a plea agreement on behalf of a client could constitute ineffective assistance of counsel. The Sixth Amendment affords criminal defendants the right “to have the assistance of counsel” for their defense, which the Supreme Court has interpreted to mean effective counsel.

In Davis v. United States, Justices Ketanji Brown Jackson and Sonya Sotomayor took the rare step of issuing a written dissent of the Court’s denial of certiorari. Both justices are former criminal law attorneys—Justice Jackson was once an assistant public defender in Washington, D.C., and Justice Sotomayor was an assistant district attorney in Manhattan. As a result of the Court’s denial of certiorari, the ongoing circuit split means that an attorney’s failure to pursue a plea agreement may constitute ineffective assistance of counsel in violation of the defendant’s Constitutional rights, but only in certain states.Continue Reading Supreme Court Declines to Resolve Circuit Split Regarding Ineffective Assistance of Counsel

The Supreme Court of the United States will decide an issue impacting charging decisions in criminal cases involving technology and where those cases are tried. Specifically, the Supreme Court will decide whether criminal defendants may be retried after they are convicted in the wrong “venue,” i.e., the location where the trial took place. This constitutional venue requirement—and the Supreme Court’s ultimate decision on the remedy for violating it—will influence future cases involving technology, where defendants, victims, servers, and resources used to commit the crime are often in different states or even nations.

In the case at issue, the defendant allegedly hacked into a company’s website, obtained certain trade secrets, and offered to sell those trade secrets through various posts on social media. As with many crimes involving technology today, numerous locations were involved: the defendant remained entirely within the Southern District of Alabama, the victim-company was in the Northern District of Florida, and the victim-company’s hacked servers were in the Middle District of Florida. But where to conduct the trial? Based on the location of the victim-company’s headquarters, the government decided (incorrectly) to indict the defendant in the Northern District of Florida, on three counts: violation of the Computer Fraud and Abuse Act, theft of trade secrets, and extortion. At the end of trial, the jury convicted the defendant of the latter two counts.

On appeal, the U.S. Court of Appeals for the Eleventh Circuit held that for the trade-secrets conviction “venue was not proper in the Northern District of Florida because [the defendant] never committed any essential conduct in that location.” To remedy this violation, the court had two options: (1) vacate the conviction, allowing the defendant to be retried in a (supposedly) proper forum, or (2) acquit the defendant of his conviction in the improper forum, which would bar his retrial in another forum under the U.S. Constitution’s Double Jeopardy Clause that prohibits giving “the government . . . a second chance at prosecution.” The 11th Circuit chose the first option, endorsing a remedy that effectively allows the government, when it chooses the wrong venue, to retry a defendant in  the correct venue.Continue Reading Venue Misstep Shows Complexity of Prosecuting Cybercrime: Supreme Court to Weigh In

On January 20, 2022, the U.S. Supreme Court held in an 8-1 opinion in Hemphill v. New York that Darrell Hemphill did not “open the door” to the admission of out-of-court third-party testimony by making it “arguably relevant to his theory of defense.” The Court further held that the admission of such testimony violated Hemphill’s rights under the Sixth Amendment’s Confrontation Clause. The opinion will have practical significance for defense attorneys and prosecutors preparing for trial.  See Supreme Court to Weigh Protections Under Confrontation Clause.
Continue Reading U.S. Supreme Court Rejects Argument That Defendant “Opened the Door” to Evidence That Violated Confrontation Clause

The Sixth Amendment’s Confrontation Clause provides criminal defendants with the right to “confront”—i.e., cross-examine—the witnesses against them.  But can a criminal defendant “open the door” to the admission of evidence otherwise barred by the Confrontation Clause?  The U.S. Supreme Court will address that question in Hemphill v. New York, scheduled for oral argument next month.  The outcome of that case may significantly expand when prosecutors at all levels, from local district attorneys’ offices to DOJ Main Justice, can overcome defendants’ right to exclude absent-witness testimony.

Darrell Hemphill was convicted of murder in New York after another man was unsuccessfully prosecuted for the same crime.  Hemphill argued at trial that the first suspect committed the crime.  That was enough for the trial court, and ultimately New York’s highest court, to determine he had opened the door for the prosecution to introduce evidence rebutting Hemphill’s claim—specifically, an out-of-court statement by the first man that he did not possess the type of gun responsible for the murder.

Federal and state rules of evidence like New York’s typically allow a party to introduce rebuttal testimony like this—even if it could not do so originally—if the opposing party puts the issue into play.  But Hemphill argues that the Confrontation Clause is a separate safeguard that cannot be overcome simply by opening the door.  Under Hemphill’s theory, the first man’s statement should not have been admitted, even after Hemphill implicated him for the crime, unless the man could also be cross-examined at trial.
Continue Reading Supreme Court to Weigh Protections Under Confrontation Clause

On May 9, 2018, the Fourth Circuit Court of Appeals issued an opinion in United States v. Kolsuz, holding that the Fourth Amendment requires individualized suspicion for forensic searches of cell phones seized at the border.

In so holding, the Fourth Circuit provides important clarification about how the Fourth Amendment applies to border searches of electronic devices. But, both in the Fourth Circuit and in jurisdictions across the country, critical questions remain unanswered about the scope of the Fourth Amendment in this context.

Source: ACLU.org

The Decision

In United States v. Kolsuz, federal customs agents found firearm parts in the checked luggage of an airport traveler and then detained him as he was attempting to board an international flight. Subsequently, and without a warrant, agents seized his cell phone and “subjected it to a month-long, off-site forensic analysis, yielding a nearly 900-page report cataloging the phone’s data.” Based in part on this information, the traveler was eventually convicted of, among other things, attempting to smuggle firearms out of the country.

On appeal of his conviction, the traveler challenged the denial of his motion to suppress the forensic analysis of his cell phone as a violation of his Fourth Amendment rights.

In addressing the issue, the Fourth Circuit acknowledged that government agents may perform “routine” searches at international borders, or their functional equivalents, without a warrant or individualized suspicion consistent with the Fourth Amendment. But, the Court recognized that even at the border certain “non-routine,” “highly intrusive” searches require individualized suspicion.

Ultimately, the court held that forensic searches of digital devices, like the one at issue in that case, qualify as such “non-routine” searches and are thus prohibited absent some level of individualized suspicion.

The Court’s holding was based, in part, upon its determination that forensic analysis of a digital device can “reveal an unparalleled breadth” of “private,” “sensitive” information. It was also based on the Supreme Court’s 2014 decision in Riley v. California, which recognized the strong privacy interests associated with electronic devices. There, the Supreme Court held that a warrant is required to search a cell phone seized incident to arrest because of the private, extensive information contained on such devices.

Notably, however, the Fourth Circuit did not decide whether the requisite level of suspicion for such forensic searches is reasonable suspicion, or something more (like a warrant supported by probable cause). It also had no occasion to decide the requisite level of suspicion for officers to conduct “manual” searches, where agents review the content of electronic devices without the help of forensic technology.

Other Case Law, Open Questions
Continue Reading Courts Continue to Grapple with Border Searches of Electronic Devices: Fourth Circuit Rules Forensic Searches Require Individualized Suspicion