Misidentification is a major factor in wrongful convictions. While you may believe what you see, you may not have seen what you believe you saw. The Innocence Project has found that eyewitness misidentifications contributed to over 75% of the more than 220 wrongful convictions in the United States which have been overturned by post-conviction DNA evidence. Traditional eyewitness identifications remain the most commonly used evidence brought against criminal defendants even though there is proof of the inaccuracy of traditional eyewitness identification procedures. For example, the eyewitness often assumes that the perpetrator of the crime is one of the people presented in the lineup. This often leads to the selection of a person as the perpetrator despite doubts by the witness.
Additionally, people’s memories can be distorted by many different factors. For example, the conditions in which the alleged perpetrator was viewed. There is the anecdote of how Abraham Lincoln defended a man by showing that there was not enough light to have accurately viewed the suspect. The human memory is fallible. Memory is not fixed, it can be influenced and altered. After the crime and throughout the criminal investigation, the witness attempts to piece together what happened. His memory is evidence and must be handled as carefully as the crime scene itself to avoid forever altering it.
Another problem that can arise in eyewitness testimony is the ability to communicate what was seen. The most common problem in this area involves the witness’ inability to articulate the descriptive facts required to reach adequate investigative conclusions. Defense counsel must be alert to communication disabilities such as language barriers, insufficient vocabulary, deficient intellectual functioning and communication disorders. Such eyewitness problems create fertile areas for cross-examination.
The problem is that police investigations can rely on eyewitness descriptions and later identification which are thoroughly inaccurate. These inaccurate eyewitness identifications can distort police investigations. The police may stop looking for other suspects once a witness identifies the suspect to detectives, whether or not that person actually committed the crime. This means that the police are distracted from finding the real perpetrator, focusing instead on building the case against an innocent person.
Tuesday, December 29, 2009
Wednesday, December 9, 2009
Pennsylvania Expungements
Since 9/11, many employers are routinely running record checks on current employees and every new candidate for employment. Many people are not being hired because of some youthful indiscretion that they may have even forgotten about themselves: e.g:, retail theft, disorderly conduct, underage drinking, carrying an open container of alcohol, and so on. Each of the fifty states has its own rules regarding expungements, sealing of records, and pardons. Pennsylvania is one of the worst states when it comes to getting your record cleared. We have no provision for the sealing of records.
There are two new developments, one is act 134 of 2008 and the other is House Bill 264 which is gurgling through the legislature.
Until 2008, only non-convictions could be expunged without regard to the severity of the offense or the punishment. Non-convictions include verdict of not guilty; dismissal; withdrawal of charges, or nolle prosequi; Accelerated Rehabilitative Disposition; or Probation Without Verdict pursuant to the Controlled Substances Act.
The passage of Act 134 now allows for the expungement of a conviction for a Summary offense provided the defendant has been free of arrest or prosecution for five (5) years following the conviction for that offense. Prior to submitting your petition for expungement for a Summary offense, the following documents must be obtained:
House Bill 264, as amended by A02312, further provides for expungements of criminal history records for certain misdemeanor offenses under Title 18 (Crimes and Offenses). If an individual seeks an expungement for a misdemeanor of the third degree, he must be free of arrest or prosecution following final release from confinement or supervision for seven (7) years. If an individual seeks an expungement for a misdemeanor of the second degree, he must be free of arrest or prosecution following final release from confinement or supervision for 10 years.
Expungements of criminal history records for second and third degree misdemeanors shall not apply in the following circumstances:
-- An offense punishable by imprisonment of more than two years.
-- Four or more offenses punishable by imprisonment of one or more years
-- A violation relating to simple assault.
-- An offense classified as a misdemeanor of the second degree committed when the individual was at least 25 years of age.
-- A violation relating to indecent assault.
-- A violation relating to sexual intercourse with an animal.
-- A violation relating to cruelty to animals.
-- A violation of any provision relating to firearms and dangerous articles.
-- Any offense where an individual is required to register under Megan's Law.
-- A violation relating to Driving after imbibing or utilizing drugs.
-- A violation relating to offenses involving danger to the person if the victim was a law enforcement officer engaged in the performance of duty and the perpetrator knew the victim was a law enforcement officer at the time of the offense.
Expungements provided for under House bill 264 are at the discretion of the court and the court shall consider the following when determining whether to grant a petition for expungement:
-- The nature of the offense.
-- The nature and the disposition of any related charges.
-- The impact of the offense upon any victims of the offense.
-- Any reasons the Commonwealth may give for wishing to retain the records.
-- The petitioner's age, criminal record, and employment history.
-- The length of time that has elapsed between the arrest and the petition to expunge.
-- The specific adverse consequences the petitioner may endure should the expungement be denied.
House Bill 264 also increases the number of days in which the court shall give notice to district attorneys of the county where the original charge was filed of any applications for expungement. Currently, the court has 10 days to give notice and this legislation increases that time frame to 30 days.
If you have any questions give me a call Talk to you later.
There are two new developments, one is act 134 of 2008 and the other is House Bill 264 which is gurgling through the legislature.
Until 2008, only non-convictions could be expunged without regard to the severity of the offense or the punishment. Non-convictions include verdict of not guilty; dismissal; withdrawal of charges, or nolle prosequi; Accelerated Rehabilitative Disposition; or Probation Without Verdict pursuant to the Controlled Substances Act.
The passage of Act 134 now allows for the expungement of a conviction for a Summary offense provided the defendant has been free of arrest or prosecution for five (5) years following the conviction for that offense. Prior to submitting your petition for expungement for a Summary offense, the following documents must be obtained:
- A current certified record indicating that the petitioner has not had any arrests, charges or convictions for a minimum of five (5) years since the conviction of the Summary offense for which the expungement is requested. This record check is performed by the Pennsylvania State Police. For further information on obtaining this information, please reference their website: How to Obtain a Criminal History Record
- A certified record indicating that the petitioner has fully paid all fines, costs and restitution for all convictions of record.
House Bill 264, as amended by A02312, further provides for expungements of criminal history records for certain misdemeanor offenses under Title 18 (Crimes and Offenses). If an individual seeks an expungement for a misdemeanor of the third degree, he must be free of arrest or prosecution following final release from confinement or supervision for seven (7) years. If an individual seeks an expungement for a misdemeanor of the second degree, he must be free of arrest or prosecution following final release from confinement or supervision for 10 years.
Expungements of criminal history records for second and third degree misdemeanors shall not apply in the following circumstances:
-- An offense punishable by imprisonment of more than two years.
-- Four or more offenses punishable by imprisonment of one or more years
-- A violation relating to simple assault.
-- An offense classified as a misdemeanor of the second degree committed when the individual was at least 25 years of age.
-- A violation relating to indecent assault.
-- A violation relating to sexual intercourse with an animal.
-- A violation relating to cruelty to animals.
-- A violation of any provision relating to firearms and dangerous articles.
-- Any offense where an individual is required to register under Megan's Law.
-- A violation relating to Driving after imbibing or utilizing drugs.
-- A violation relating to offenses involving danger to the person if the victim was a law enforcement officer engaged in the performance of duty and the perpetrator knew the victim was a law enforcement officer at the time of the offense.
Expungements provided for under House bill 264 are at the discretion of the court and the court shall consider the following when determining whether to grant a petition for expungement:
-- The nature of the offense.
-- The nature and the disposition of any related charges.
-- The impact of the offense upon any victims of the offense.
-- Any reasons the Commonwealth may give for wishing to retain the records.
-- The petitioner's age, criminal record, and employment history.
-- The length of time that has elapsed between the arrest and the petition to expunge.
-- The specific adverse consequences the petitioner may endure should the expungement be denied.
House Bill 264 also increases the number of days in which the court shall give notice to district attorneys of the county where the original charge was filed of any applications for expungement. Currently, the court has 10 days to give notice and this legislation increases that time frame to 30 days.
If you have any questions give me a call Talk to you later.
Monday, November 16, 2009
Terrorists on trial
US Attorney General Eric Holder announced last week that Khalid Sheikh Mohammed and four others would be charged in Federal Court in New York City for crimes connected to the World Trade Center attack on 9-11. Predictably, the talking heads from each party spouted their respective positions over the weekend. Holder stated that he has much evidence that has not been released to the public that is independent and untainted by the waterboarding.
To say the least, this process will be fascinating.
Questions:
Will the accused terrorists be permitted to represent themselves?
Will attorneys step forth to represent them pro bono with an eye on grabbing one of the rings in the media circus?
Will the Justice Department have the ability to determine which Federal Judge lands the job of presiding over this case?
Will it be possible to find 12 members to form an impartial jury in New York?
Will the inevitable defense request for a change of venue be granted?
What if one or more of the defendants is acquitted?
I don't have the answers. Talk to you soon.
To say the least, this process will be fascinating.
Questions:
Will the accused terrorists be permitted to represent themselves?
Will attorneys step forth to represent them pro bono with an eye on grabbing one of the rings in the media circus?
Will the Justice Department have the ability to determine which Federal Judge lands the job of presiding over this case?
Will it be possible to find 12 members to form an impartial jury in New York?
Will the inevitable defense request for a change of venue be granted?
What if one or more of the defendants is acquitted?
I don't have the answers. Talk to you soon.
Friday, November 13, 2009
Driving After Imbibing (DAI)
It's been five years since Pennsylvania's new DUI (DAI) law went into effect. At the time, it was the most stringent in the nation. The most unique part of the Pennsylvania bill is that it divides offenders into three tiers:
--Those above 0.08% BAC and below 0.10%
--Those above 0.10% BAC and below 0.16%
--Those above 0.16% BAC and/or those with ANY PRESENCE including metabolites of any street drug or any prescription drug not prescribed to the driver.
The recidivist aspect of the current law is fueled by the tier system. For example, an individual can have a third DUI conviction with a BAC between 0.08% and 0.10% and do only the 10 day mandatory minimum sentence. While a second individual with his third DUI conviction with a metabolite of marijuana in his system will be required to be incarcerated for 1 year under the mandatory minimum rules.
See the grid below (click on grid to enlarge).
Needless to say, this draconian law has given rise to many new defenses created by the defense bar.
Recent case law has been very favorable to motions to suppress any and all physical evidence retrieved by the police on a pretextual challenge. The police are not allowed to pull drivers over without probable cause. The Pennsylvania case law on this issue is much more favorable than Federal and/or the law of other states. For example, an officer can't sit outside a roadside tavern at 2:15 AM choosing to pull over just anyone. In many cases this would be akin to shooting fish in a barrel.
The Officer would need to articulate in the police paperwork probable cause to stop the operator for a particular traffic offense.
Another area is the two hour rule.
The Two hour rule states that police must must administer the test for BAC within two hours of the operation of the automobile. Any test outside this two hour period will be invalid. This would force the Commonwealth to prove DUI the old fashioned way and would put the case by necessity in the lowest tier since there is no available BAC.
This law has real teeth, but there are a number of ways a good defense lawyer can represent you vigorously and keep you out of jail. Talk to you soon.
--Those above 0.08% BAC and below 0.10%
--Those above 0.10% BAC and below 0.16%
--Those above 0.16% BAC and/or those with ANY PRESENCE including metabolites of any street drug or any prescription drug not prescribed to the driver.
The recidivist aspect of the current law is fueled by the tier system. For example, an individual can have a third DUI conviction with a BAC between 0.08% and 0.10% and do only the 10 day mandatory minimum sentence. While a second individual with his third DUI conviction with a metabolite of marijuana in his system will be required to be incarcerated for 1 year under the mandatory minimum rules.
See the grid below (click on grid to enlarge).
Needless to say, this draconian law has given rise to many new defenses created by the defense bar.
Recent case law has been very favorable to motions to suppress any and all physical evidence retrieved by the police on a pretextual challenge. The police are not allowed to pull drivers over without probable cause. The Pennsylvania case law on this issue is much more favorable than Federal and/or the law of other states. For example, an officer can't sit outside a roadside tavern at 2:15 AM choosing to pull over just anyone. In many cases this would be akin to shooting fish in a barrel.
The Officer would need to articulate in the police paperwork probable cause to stop the operator for a particular traffic offense.
Another area is the two hour rule.
The Two hour rule states that police must must administer the test for BAC within two hours of the operation of the automobile. Any test outside this two hour period will be invalid. This would force the Commonwealth to prove DUI the old fashioned way and would put the case by necessity in the lowest tier since there is no available BAC.
This law has real teeth, but there are a number of ways a good defense lawyer can represent you vigorously and keep you out of jail. Talk to you soon.
Wednesday, November 11, 2009
Crazy vigilante computer programs
Yesterday, I mentioned a couple of computer viruses that scared me and discussed one that hijacks your computer and deposits kiddie porn. Today's virus looks for child pornography on your computer!
A computer virus that was possibly intended to perform a public service, raises legal questions and seems sure to fuel the debate over computer privacy.
This virus, VBS.Noped.a, searches the target's machine for what it suspects may be child pornography and reports the names of files to the police. There are no reports of police officials acting on this kind of results as of yet. Antivirus software companies say it has not yet been distributed widely.
This virus was spotted by computer security companies back in May 2001. It arrived as an attachment to an e-mail message titled, ''FWD: Help us ALL to END ILLEGAL child porn NOW.'' When the recipient opened the attachment, child pornography statutes appeared on screen. The program then searched the user's hard drive for picture files that have pornographic-sounding names and then sent an e-mail message and a list of suspect files to a law enforcement agency picked at random from the program's database.
The message sent to the police said:: ''Hi, 'This is Antipedo2001. I have found a PC with known child pornography files on the hard drive. I have included a listing below and included a sample for your convenience.''
The virus also sent out copies of itself to addresses in the victim's e-mail address book.
Besides the program's invasive nature, the virus's search software was apt to falsely identify files as containing child pornography solely based on the filename. Police acting on these false results would cause irreparable harm to innocent computer owners.
Law enforcement agencies cannot search an individual's computer without a warrant, but they can and do use anonymous tips as part of their probable cause. A Justice Department lawyer said that law enforcement officials could legally conduct a search based on the tip, but added, ''That's a very different question from 'would law enforcement ever open an investigation based on that information?' ''
Perhaps the most troubling aspect of this is the havoc that the virus could wreak on the reputation of people with no involvement in child pornography.
There is no limit as to how far this information could spread. Local news organizations could receive information and report that a parent was under investigation as a for certain sex crimes. All this would be the result of an unwarranted and illegal entry to your private computer.
There were no known filtering-analysis programs that could accurately determine whether an image is of child pornography when this virus first appeared back in 2001. Now we have better methods for detecting child pornography based on hash marks and registered images.
Scary stuff!
A computer virus that was possibly intended to perform a public service, raises legal questions and seems sure to fuel the debate over computer privacy.
This virus, VBS.Noped.a, searches the target's machine for what it suspects may be child pornography and reports the names of files to the police. There are no reports of police officials acting on this kind of results as of yet. Antivirus software companies say it has not yet been distributed widely.
This virus was spotted by computer security companies back in May 2001. It arrived as an attachment to an e-mail message titled, ''FWD: Help us ALL to END ILLEGAL child porn NOW.'' When the recipient opened the attachment, child pornography statutes appeared on screen. The program then searched the user's hard drive for picture files that have pornographic-sounding names and then sent an e-mail message and a list of suspect files to a law enforcement agency picked at random from the program's database.
The message sent to the police said:: ''Hi, 'This is Antipedo2001. I have found a PC with known child pornography files on the hard drive. I have included a listing below and included a sample for your convenience.''
The virus also sent out copies of itself to addresses in the victim's e-mail address book.
Besides the program's invasive nature, the virus's search software was apt to falsely identify files as containing child pornography solely based on the filename. Police acting on these false results would cause irreparable harm to innocent computer owners.
Law enforcement agencies cannot search an individual's computer without a warrant, but they can and do use anonymous tips as part of their probable cause. A Justice Department lawyer said that law enforcement officials could legally conduct a search based on the tip, but added, ''That's a very different question from 'would law enforcement ever open an investigation based on that information?' ''
Perhaps the most troubling aspect of this is the havoc that the virus could wreak on the reputation of people with no involvement in child pornography.
There is no limit as to how far this information could spread. Local news organizations could receive information and report that a parent was under investigation as a for certain sex crimes. All this would be the result of an unwarranted and illegal entry to your private computer.
There were no known filtering-analysis programs that could accurately determine whether an image is of child pornography when this virus first appeared back in 2001. Now we have better methods for detecting child pornography based on hash marks and registered images.
Scary stuff!
Tuesday, November 10, 2009
Did the dog really eat my homework?
I almost want to throw my computer away after learning about a couple of stories this week regarding computer viruses.
Computer viruses can wipe out your hard drive, trash your data, steal your personal information, and take over your computer, but this virus might be the worst: This virus can make you an unsuspecting collector of child pornography. Viruses can store illegal pictures and videos by the malicious programs better known for stealing personal information. In this scenario, it's your reputation that's stolen.
Pedophiles are using virus-infected PCs to remotely store and view their collections without fear of being detected. These viruses can also cause your computer to surf illegal Web sites. The result is that you get kiddie porn on your computer — and might not realize it until police knock at your door with a warrant.
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon kiddie porn placed on a PC through a virus. This type of defense has been tried with mixed results in the past and it is one which is viewed with skepticism by law enforcement. It will costs potential victims hundreds of thousands of dollars to prove their innocence.
One case occurred when a victim's employer became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 times more data than his colleagues. A technician found pornographic images of children in the PC folder that stores images viewed online. The victim was fired and charged with possession of child pornography, which has a potential of sentence of up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends.
The victim and his wife spent $250,000 on legal fees to fight the case . This required liquidating their savings, taking a second mortgage and selling their car. This also caused health problems from the stress they endured.
The defense conducted a forensic investigation that revealed the laptop was infected with a virus. The virus programmed the computer to visit as many as 40 child porn sites per minute — an inhuman feat. While the victim was away from home one night, someone logged on to the computer and porn flowed in for an hour and a half.
Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.
"It's an example of the old `dog ate my homework' excuse," says Phil Malone, director of the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society. "The problem is, sometimes the dog does eat your homework."
Computer viruses can wipe out your hard drive, trash your data, steal your personal information, and take over your computer, but this virus might be the worst: This virus can make you an unsuspecting collector of child pornography. Viruses can store illegal pictures and videos by the malicious programs better known for stealing personal information. In this scenario, it's your reputation that's stolen.
Pedophiles are using virus-infected PCs to remotely store and view their collections without fear of being detected. These viruses can also cause your computer to surf illegal Web sites. The result is that you get kiddie porn on your computer — and might not realize it until police knock at your door with a warrant.
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon kiddie porn placed on a PC through a virus. This type of defense has been tried with mixed results in the past and it is one which is viewed with skepticism by law enforcement. It will costs potential victims hundreds of thousands of dollars to prove their innocence.
One case occurred when a victim's employer became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 times more data than his colleagues. A technician found pornographic images of children in the PC folder that stores images viewed online. The victim was fired and charged with possession of child pornography, which has a potential of sentence of up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends.
The victim and his wife spent $250,000 on legal fees to fight the case . This required liquidating their savings, taking a second mortgage and selling their car. This also caused health problems from the stress they endured.
The defense conducted a forensic investigation that revealed the laptop was infected with a virus. The virus programmed the computer to visit as many as 40 child porn sites per minute — an inhuman feat. While the victim was away from home one night, someone logged on to the computer and porn flowed in for an hour and a half.
Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.
"It's an example of the old `dog ate my homework' excuse," says Phil Malone, director of the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society. "The problem is, sometimes the dog does eat your homework."
Friday, November 6, 2009
Yikes!
I have just finished reading Mark Bowden's Article in this Month's Vanity Fair, A Crime of Shadows. Mr. Bowden has given us a glimpse of the law enforcement insanity infecting a number of Internet Crimes Against Children (ICAC) task forces in Pennsylvania. He focuses his attention to a Delaware County Case, which resulted in a guilty plea.
The Federal government has bankrolled various ICAC Task Forces in Pennsylvania. these task forces are swimming in funds for full time Law Enforcement Officers to act as decoys to entrap internet "predators". Additionally, the Department of Justice funds training and technical assistance that runs from detection to trial aspects of the case.
The sheer amount of time, energy, and creativity invested by these decoys in chat rooms is astounding. Any Pennsylvania Law Enforcement Office interested in a four and a half day intensive training program at Fox Valley Techinical College in undercover chat can sign up with tuition paid by the Feds. They are trained to court the "mark" and introduce the subject of sex with underage individuals.
If the poor slob in the middle of his fantasy indicates any kind of interest, he's hooked and eventually booked.
The inmates have taken over the Asylum.
Wednesday, November 4, 2009
Seth Williams
Democrat Seth Williams won the election for the Philadelphia District Attorney's office by a 3 to 1 margin over his Republican rival. DA elect Williams is a former district attorney here in Philadelphia who is widely respected by the criminal defense bar in Philadelphia. Mr. Williams succeeds Lynn Abraham who served for 18 years.
Mr. Williams has a lot of new ideas to reform what he calls a "broken criminal justice system". He intends to concentrate on gun violence. He also plans to localize some of the prosecutions in this far flung city with branch offices in various neighborhoods. Mr. Williams believes that the bulk of his efforts should go towards prosecuting serious crime. He has diverse new ideas to deal with victimless summaries and misdemeanors which clog the courts and eat up manpower.
Congratulations and good luck Mr. District Attorney elect.
Mr. Williams has a lot of new ideas to reform what he calls a "broken criminal justice system". He intends to concentrate on gun violence. He also plans to localize some of the prosecutions in this far flung city with branch offices in various neighborhoods. Mr. Williams believes that the bulk of his efforts should go towards prosecuting serious crime. He has diverse new ideas to deal with victimless summaries and misdemeanors which clog the courts and eat up manpower.
Congratulations and good luck Mr. District Attorney elect.
Tuesday, November 3, 2009
Welcome to my first blog.
This high-tech stuff is a bit complicated so bear with me.
I intend to blog on a regular basis on topics related to criminal law and the criminal justice system.
One of the areas to be touched on is the criminal law as it relates to crimes committed while on the computer. Obviously you can sit in the privacy of your home or office and commit a lot of white collar crime You can do that in a suit and tie or in your pajamas.
You can threaten people on the computer.
You can blackmail people on the computer.
You can begin with some innocent sex talk that could develop into activity that could be construed as criminal.
You can download some pornographic photos and discover that amongst this pornography are some images that are considered child pornography.
The unique thing about computers is that they create traces, footprints or fingerprints, in short a record. You are not totally anonymous on the computer.
Take care and i'll talk to you again soon.
I intend to blog on a regular basis on topics related to criminal law and the criminal justice system.
One of the areas to be touched on is the criminal law as it relates to crimes committed while on the computer. Obviously you can sit in the privacy of your home or office and commit a lot of white collar crime You can do that in a suit and tie or in your pajamas.
You can threaten people on the computer.
You can blackmail people on the computer.
You can begin with some innocent sex talk that could develop into activity that could be construed as criminal.
You can download some pornographic photos and discover that amongst this pornography are some images that are considered child pornography.
The unique thing about computers is that they create traces, footprints or fingerprints, in short a record. You are not totally anonymous on the computer.
Take care and i'll talk to you again soon.
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