Category Archives: Sixth Amendment

CLE Course: Issue Spotting in Criminal Law Cases


There is a great deal at risk when a person is accused of a crime. Your client’s life and liberty are at stake, and there is a lot of information you need to be able to recognize to ensure that your client’s rights are properly protected. Whether you are a civil attorney that needs a refresher on criminal law or you are an attorney that’s just starting out in criminal practice, this CLE program will cover the basics of criminal defense and issue spotting in criminal cases.

Common issues in criminal law courses:

  • Whether the questioning of the defendant was legal
  • Did the police have a legal reason to stop the defendant
  • Whether the police unlawfully seized evidence

In this Criminal Law 101 course, attorney Paul Ghanouni mainly discusses constitutional issues, police-citizen encounters, statements to police and search & seizure law. Attorneys that take this course will be able to: recognize key issues in criminal case, discuss common criminal law issues, identify key facts and conduct research on criminal topics. While this course does discuss key criminal topics & issues, it does not discuss the specific elements of criminal offenses because this information is specific to each jurisdiction. To access the course please click here: Criminal Law: Issue Spotting 101.

Further issues addressed in this CLE course:[1]

  • The exclusionary rule
  • The right to counsel
  • The right to silence
  • Voluntary statements
  • Searches of persons & motor vehicles
  • The plain view doctrine
  • The fruit of the poisonous tree doctrine
  • Key practice points

Paul Ghanouni is a criminal defense attorney based in Woodstock, Georgia. After beginning his career at a small firm, he founded his own law practice in 2007 and now specializes in teen and young adult defense. He is a regular presenter on legal issues before legal and community groups. Outside of his practice he is active with the Blue Ridge Bar Association, having served as vice president and president. He is a member of the Woodstock Optimist Club.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

[1] Case law discussed in this CLE course includes: Terry v. Ohio, 392 U.S. 1 (1968), Beck v. Ohio, 379 U.S. 89 (1964), Moran v. Burbine, 475 U.S. 412 (1986), Davis v. United States, 512 U.S. 452 (1994), Miller v. Fenton, 474 U.S. 104 (1985), Mincey v. Arizona, 437 U.S. 385, Lynumn v. Illinois, 372 U.S. 528 (1963), Chimel v. California, 395 U.S. 752 (1969), United States v. Sharpe, 470 U.S. 675 (1985), Arizona v. Gant, 556 US 332 (2009), South Dakota v. Opperman, 428 U.S. 364 (1976), Pennsylvania v. Labron, 518 U.S. 938 (1996) and Horton v. California, 496 U.S. 128 (1990).

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Juror Privacy … Or a Fair Trial?

By Jason Castillo, Director of Legal Education

There is a major conflict brewing in our American legal system.  The conflict pits the electronic privacy rights of jurors against the Sixth Amendment and the right to a fair trial for criminal defendants.  And last week a California Appeals Court decision bolstered the Sixth Amendment – while possibly undermining the SCA and juror privacy.[1] 

In Juror Number One v. Superior Court (Royster) a Third District Court of Appeal panel ruled that a juror who wrote on his Facebook page about the criminal trial must consent to having his online postings turned over to the trial judge for review to determine whether his misconduct was prejudicial against the defendant.  Juror No. 1 argued unsuccessfully that the compelled consent to the release of his Facbook postings violated his Fourth & Fifth Amendment rights, as well as the Stored Communications Act (SCA).  The SCA is a federal law that limits government access to online communications.

Many commentators believe that the Third Circuit’s decision is the first of its kind.  In reaching the decision the Third District reasoned that the SCA only protects third parties like Facebook from being compelled to disclose information such as Juror No. 1’s postings.  Therefore, Juror No. 1 has no protections under the statute. Many privacy advocates claim that this ruling violates the spirit of the SCA – a statute Congress enacted “to fill a gap in the protections afforded by the Fourth Amendment.”[2]

“With smartphones and mobile devices now ever present in our society, jurors around the country simply can’t resist Google mapping the crime scene or updating their Twitter and Facebook accounts with information about the trial.”

However, it does seem as though many jurors have a problem resisting the urge to tweet, blog and Facebok facts and opinions about their case.[3]  Frustrated judges around the country have watched numerous trials compromised by juror’s electronic misconduct.  These judges have turned tried a few different actions to try and preserve defendants Sixth Amendment rights – including contempt findings, confiscating smartphones and enhanced jury instructions.

The Third District’s ruling may present California judges with a new opportunity during jury instructions to warn jurors not to post to social media websites during trial, and that if they do their writings may be subject to inquiry.  But will this be enough?  New York recently amended its jury instructions to advise against electronic communications in criminal cases, but these provisions do not necessarily apply in civil cases.[4]

“… the extent of Juror Number One‟s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising.” – Justice Hall

The court dismissed the Fourth Amendment claims because Juror No. 1 had no “legitimate expectation of privacy in the records.”  While many privacy advocates feel this ruling unfairly intrudes into a juror’s privacy and the SCA, the defendant’s Sixth Amendment right to a fair trial trumps these minor instrusions.[5]  Further, if Juror No. 1 did not want the government delving into his electronic affairs he should have listened to the jury instructions – and stayed off Facebook!

I previously blogged about this case back in April (See: Should One Facebook Post Merit a New Trial?)

[1] The appeals court concluded that the juror’s “privacy rights do not trump [the defendant’s] right to a fair trial free from juror misconduct.”

[2] Juror Number One v. Superior Court (Royster).

[3] See Commonwealth v. Werner, 2012 Mass. App. LEXIS 183 (Ct. App. Mass 2012) (new trial denied without waiting for Facebook to respond to subpoena); People v. Wilson, 93 AD 3d 483 (1st Dept. 2012) (juror made Facebook postings advising she was on a jury and her friends made “foolish” replies relating to trials in general but juror said she was not affected by these comments and decided the case impartially).

[4] See CPL §270.40, Rev’d Jury Admonitions, (Rev’d May 5, 2009) (revised to include warning regarding use of electronic devices).

[5] Further, you would have to be a fool to think you have privacy in a social network in today’s day and age.  There is almost no reasonable expectation of privacy for things you post online.

Should One Facebook Post Merit a New Trial?

By Jason Castillo, Director of Legal Education

Do you think that this Facebook post violates a criminal defendant’s Constitutional right to a fair trial?  And should the juror’s Facebook postings protected under the federal Stored Communications Act (SCA)?[1]  An appellate court in California has been asked to decide these novel electronic issues.[2]

In June, 2010, shortly after the jury convicted the parties involved in a brutal gang beating in Sacramento, a juror became concerned that the jury foreman’s Facebook postings may have violated the defendant’s right to a fair trial.  She reported this conduct to the defendant’s counsel who began the process of obtaining the electronic records.  Since the defense attorneys didn’t have legal access to the juror’s Facebook page, they were forced to subpoena Facebook for the records.

Facebook then moved to quash the subpoenas and to be relieved from the court orders.  They argued that the federal Stored Communications Act (SCA) prohibited the social network from divulging the contents of petitioner’s communications.  Facebook did state, however, that the jury foreman has the discretion to turn over the electronic postings to the attorneys of the criminal defendants.  Of course the jury foreman –  A.R. – has refused to turn over the posts.

“The case involves the significant and novel issue of whether a trial court’s power to investigate a claim of juror misconduct includes the power to compel an accused juror to forfeit the protections the juror would otherwise enjoy under the federal Stored Communications Act.”

The attorney representing A.R. claims that the subpoena is a violation of his client’s First and Fourth Amendment rights to free speech and privacy.  However, A.R.’s Constitutionally protected speech and privacy rights must be weighed against a criminal defendant’s Sixth Amendment right to an impartial jury and fair trial.  Attorneys for the defendants believe that A.R.’s Facebook posts will prove that the juror was either biased or improperly contacted by outside third parties.

Should this rather innocuous electronic post rise to the level of ordering a new trial?  While it is true that A.R. did violate the court’s instruction to not share or communicate information about the trial, this does not seem like the type of conduct that would merit a new trial.[3]  The jury foreman –  A.R. – merely stated that the evidence was boring.

Now, if instead A.R. had posted on Facebook that he had done hours of outside research on Google about the crime scene and defendant, this would start encroaching into the defendant’s right to an ‘impartial’ trial. However, in the case at hand, I doubt the Court of Appeal will order the defendant to turn over the posts and the question of whether the juror’s Facebook postings are protected under the federal Stored Communications Act (SCA) will have to wait for another day.  There are two cases on point in other states where the courts issued an order compelling consent under the SCA for the disclosure of Facebook postings and text messages as part of civil discovery.[4]

What do you think?  Should the Court of Appeal order a new trial for the defendants?

[1]  Stored Communications Act (SCA) 18 U.S.C. § 2701 et seq.

[2] The case is Juror Number One (A.R.) v. Honorable Michael P. Kenny Judge of the Sacramento County Superior Court.

[3] See CALCRIM No. 101

[4] See Romano v. Steelcase Inc. (2010) 907 N.Y.S.2d 650 and Flagg v. City of Detroit (E.D.Mich. 2008) 252 F.R.D. 346.

Does the Casey Anthony Decision Strengthen the American Legal System?

I didn’t wake up yesterday morning with the Casey Anthony case on my mind – I have barely followed the case. I spent the weekend with my family celebrating an incredible Fourth of July weekend commemorating our independence and the birth of our country.

However, as soon as I woke up yesterday and looked at my Twitter app on my Yahoo mail, the first thing I noticed was the Casey Anthony case and the impending verdict that was to be handed down at 11:45 a.m. Pacific Time. Like many of you I remember exactly where I was the day that the O.J. verdict was handed down and this case will live on in the American psyche as O.J II.

Like many others out there my initial reaction was shock. How could this woman be found not guilty of the major charges? From everything that we have seen in the media and the facts of the case it seems like she is incredibly guilty. And there are a lot of people across the country who feel the same way. Twitter erupted after the verdict, here are some of the responses:

  • Never has a trial left lawyers looking more foolish and the public more ignorant. We are all the worse for this case, except Jose Baez.
  • “Casey Anthony verdict:one more sign to many Americans that US is going crazy, no longer makes sense.Didn’t report missing child for 31 days?”
  • RT @jimbradysp: We may have just found the OJ SImpson of a new generation.
  • So Casey Anthony walks but @plaxico Burress serves two years for SHOOTING HIMSELF?!
  • So…how long before the “Keeping Up With the Baezes” reality show creates a bizarre national obsession with his daughters?

Some of the more poignant comments may come from Timothy B. Corcoran:

  • “You cannot convict someone until they’ve had their day in court” – whether you like the verdict or not, this is what makes America great
  • I don’t know if the verdict was right but as I explained to my kids: in the US we’re thankful for the rule of law and impartial juries

In some odd way, the Anthony case may strengthen American jurisprudence. In this country we are not tried by a panel of government judges or by the media. In America our guilt or innocence is determined by an impartial jury of your peers as guaranteed by the Sixth Amendment to the United States Constitution. And it is the prosecution that has the burden to prove the charges levied by the State, not the defendant.[1] Here, in the Anthony case it does not seem that the State proved their case.

The next time you try to get out of jury duty remember this verdict.

[1] The Casey Anthony verdict: The jury did the right thing