BLOG BULLETS: Use analogies to pre-computer Fourth Amendment case law for arguments on computer searches. There may be more than one analogy to consider. The analogies aren’t always helpful, so keep in mind arguments that computer searches are different and so protections should be greater. NOW THE BLOG: In my last two posts, I talked […]
Read/Write CommentsBLOG BULLETS Onsite computer searches aren’t necessarily as difficult as experts claim. Onsite computer searches are getting easier and some day in the not too distant future may be the norm. Some search warrants even now require at least a good faith effort to conduct an initial search onsite. NOW THE BLOG: In my last […]
Read/Write CommentsBLOG BULLETS: Computer searches are a brave new world where the courts and law enforcement are still trying to figure it out. The courts have given leeway for computer searches due to their complexity, but recognized that may change as technology improves and changes. Check for use of a search protocol reasonably aimed at finding […]
Read/Write CommentsBLOG BULLETS Defense counsel and experts aren’t entitled to a copy of the child pornorgraphy on a seized computer. Defense counsel and experts are entitled to a copy of everything else on a seized computer. Seek a redacted hard drive; it can help a lot with trial preparation and might even help your […]
Read/Write CommentsBLOG BULLETS: Little things in a translation can make a big difference. Translations by an intermediary agent are admissible non-hearsay only if the agent is sufficiently skilled in the foreign language. Subpoena the intermediary agent translator to produce voice exemplars in the foreign language so you can analyze his or her language skill. NOW THE […]
Read/Write CommentsBLOG BULLETS: Brady applies to sentencing mitigation evidence, not just trial evidence. The government often forgets this, so remind them, and if they disagree, remind the court. And make them apply the Judge Pregerson Sudikoffstandard approved by the Ninth Circuit, not the appellate standard for reversal. NOW THE BLOG: I thought I’d add another blog […]
Read/Write CommentsBLOG BULLET Think about legislative and rule proposals as well. NOW THE BLOG: Oh, the wonderful Internet and thank God the days of vellum, papyrus, and stone tablets are long gone. I went out to search the Internet for additional support for the Brady standard discussed in my post last week, and it reminded me […]
Read/Write CommentsBLOG BULLETS: Post-conviction appellate Brady standard “materiality” requirement is prejudice requirement that doesn’t apply pretrial. Pretrial Brady standard should be just any evidence that tends to help the defense, as explained by district courts cited with approval by the Ninth Circuit. Get court orders because government doesn’t agree with and use this standard. NOW THE […]
Read/Write CommentsBLOG BULLETS: You’re entitled to discovery on experts even if the expert didn’t prepare a report That discovery should include a summary of the expert’s opinions and the reasons for his or her opinions The government doesn’t always – even usually doesn’t – remember its obligations under this rule NOW THE BLOG: In this and […]
Read/Write CommentsBLOG BULLETS: Good news: Most California drug convictions don’t qualify for federal drug conviction enhancements under the “categorical approach.” Bad news: The government may be able to get you under the “modified categorical approach.” But the government may not be able to do that in your case, so put them to the test. NOW THE […]
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