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Showing posts from September, 2009

Recent case holding: Smith v. Lockyer

Smith v. Lockyer, 9th Circuit, Case #: 07-16876, Opinion dated 9/9/09:

Case Holding: A supplemental instruction to the deadlocked jury, addressing concerns of a hold-out juror (concerns which are known to the judge) is considered a denial of defendant's Sixth Amendment right.

Facts: Smith and co-defendant were charged with burglary, robbery, and forced oral copulation. At trial, the prosecution introduced DNA evidence linking Smith to the oral copulation charge. After deliberating, the jury told the judge two times that it was deadlocked on this charge and the judge gave an “ Allen ” instruction, directing the jury to return to its deliberations. On the fifth day, one of the jurors wrote the judge a specific note in which the juror expressed his concerns with the DNA evidence and explained that in light of his concern, he could not vote for conviction. Over the strenuous objection of the defense, the judge then instructed the jury to consider other specific evidence that it believed…

Computer Searches, Major League Baseball, and Drug Testing -- The Ninth Circuit Takes the 4th Amendment into the Information Age

An En Banc Decision by Chief Judge Kozinski on August 31, 2009 will prove to be an influential decision on Fourth Amendment searches of computers. United States v. Comprehensive Drug Testing, 2009 WL 2605378 (9th Cir. Aug. 26, 2009). “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.

CDT sets forth new search and seizure rules for the Information Age. Because the seizure of electronic records is becoming more common than paper records, in the opinion, the Ninth Circuit advises that this calls for “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id. at *15.

BackgroundWhile more detailed facts can be found at United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th C…