BLOG BULLETS: A new DOJ policy adopts a presumption that custodial interrogations should be recorded. There are exceptions where the suspect will make a statement only if isn’t recorded, where the “public safety exception” applies, where recording isn’t “reasonably practicable,” and/or where a Special Agent in Charge and a United States Attorney or his or […]

BLOG BULLETS: Section 5G1.3 of the guidelines requires a court to take an already existing sentence into account when sentencing for a second offense if the already existing sentence is for an offense that qualifies as relevant conduct, by (1) making the sentence for the second offense concurrent and (2) reducing the second sentence by […]

BLOG BULLETS: Rule 806 of the Federal Rules of Evidence allows a party to impeach a hearsay statement just as if the hearsay declarant had testified in person. One example of a way to use this rule is to offer a coconspirator’s inconsistent statement during a police interrogation after arrest to impeach an earlier statement […]

San Bernardino County sheriff’s deputies called gay, bisexual and transgender inmates “sissies” and “freak shows” and denied them access to services given to other inmates, according to a federal lawsuit filed Wednesday by civil rights attorneys. Fifteen current and former inmates of the West Valley Detention Center in Rancho Cucamonga filed the class-action lawsuit against […]

BLOG BULLETS: Additional Ninth Circuit case law supports the argument that the pretrial test for prosecutors’ duty to disclose exculpatory evidence doesn’t require the evidence to rise to some particular level of importance, or “materiality.” The Department of Justice’s own policy – as set forth in the U.S. Attorney’s Manual – also sets a lower […]

BLOG BULLETS: The Rule 16 requirement that prosecutors disclose all information “material to preparing the defense” applies to inculpatory evidence as well as exculpatory evidence. This disclosure requirement also applies to evidence relevant to affirmative defenses in addition to evidence relevant directly to guilt. There’s another recent Ninth Circuit case that confirms these points, as […]

BLOG BULLETS: The Ninth Circuit has confirmed that Descamps requires that a list of alternative ways of committing a crime in a statute must be a list of alternative elements for the statute to be divisible, not just a list of alternative means. Alternatives are alternative elements rather than alternative means when the jury has […]

BLOG BULLETS: Riley v. California’s concern about the grossly more intrusive nature of cell phone and computer searches applies equally in the border search context. While a traveler has a diminished expectation of privacy at the border, the arrestees in Riley had a diminished expectation of privacy as arrestees, and the purposes of the border […]

BLOG BULLETS: In Riley v. California, the Supreme Court held that cell phones couldn’t be searched as part of a search incident to arrest. The Court emphasized the far greater amount of information on a cell phone and the resulting far greater intrusion on privacy when a cell phone is searched. This reasoning suggests either […]

BLOG BULLETS: A document the government seeks to offer in a reopening of its case in chief is covered by the Rule 16(a)(1)(E)(ii) obligation to disclose all documents to be offered in the case in chief, just like documents the government offers in its initial presentation of evidence. The “materiality” threshold for the Rule 16(a)(1)(E)(i) […]