Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
NACDL’s robust advocacy in support of criminal justice reform flows directly from the dedication and thoughtful analysis of its members. This quintessential NACDL attribute was never more evident than at the spring board meeting held on May 18, 2014, in Las Vegas, Nev. The Board of Directors adopted two major reports that had been the subject of exhaustive research, study, and analysis by two separate committees. The reports proposed major policy positions on two of the most vexatious issues with which criminal defense lawyers grapple – the longstanding problem of gaining early and meaningful access to discovery, and the relatively new challenge related to warranted searches in the digital age.
Model Discovery Legislation
President Jim Lavine established NACDL’s Task Force on Discovery Reform in 2010.1 The task force first produced a major proposal for federal Brady reform, which was adopted by the Board on May 20, 2011.2 Thereafter, it shifted its focus to discovery more generally. The goal was to develop a platform for NACDL’s national reform efforts by crafting a model open-file discovery bill. The task force developed the bill by examining statutes and best-practice provisions around the country.3 As is reflected in the Statement of Purpose, which is set forth in Section 1 of the proposed law, the goal is “to ensure the fairness and finality of criminal trials and guilty pleas by requiring that the accused in every criminal prosecution shall receive, promptly after arraignment, on a timely basis thereafter, and prior to any plea agreement, all information within the possession of the prosecutors, law enforcement agencies, and other investigatory agencies involved in case investigation and prosecution.” From this statement, it is evident that the objective is to address the prosecutorial gamesmanship whereby essential discovery is not obtained by prosecutors from other law enforcement entities, not provided to the defense, or not provided in time to adequately prepare for trial or inform consideration of a potential plea agreement.
The task force specifically sought to close some of the common loopholes by providing a comprehensive definition of what must be included among the discoverable materials and by providing substantial direction to law enforcement agencies, investigatory agencies, and prosecutors to ensure that the appropriate information is preserved and provided to the defense. The statute also provides (1) considerable specificity as to what must be disclosed, (2) a fair measure of balance by recognizing legitimate prosecutorial concerns that might give rise to protective orders, and (3) comprehensive, incremental remedies for non-compliance. As with any model bill, the proposal does not address every possible permutation, but it does provide a sound basis for reform efforts throughout the states. NACDL is prepared to work with affiliates and other criminal justice reform entities in launching a sustained effort to bring about meaningful discovery reform.
Preserving the Fourth Amendment In the Digital Age
One of the most persistent challenges to liberty, and one that uniquely rests upon the shoulders of the criminal defense bar, is the application and preservation of Fourth Amendment principles as technologies emerge that were unimaginable at the dawn of the Republic. As each generation of scientists and inventors produces new communications and surveillance tools, law enforcement quickly, and often with no specific authority, seizes upon those tools to penetrate into the most private places and communication devices available to the people. Generally, the only check on those incursions arises from aggressive litigation by the criminal defense lawyer in the individual criminal case. But in some circumstances, advocacy in the individual case is not enough. Sometimes it is necessary to engage in vigorous advocacy to articulate policies, procedures, and laws to safeguard the values enshrined in the Fourth Amendment. Such is the case with warranted digital searches.
What’s Old Is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness) constitutes a comprehensive guide to ensure that a search of computers and electronic storage devices pursuant to a warrant does not become a blank check to rummage through every aspect of an individual’s most private communications and thoughts. The report, which was crafted by NACDL’s Fourth Amendment Committee, is available at http://www.nacdl.org/fourthamendment.4 It analyzes the current state of the law, and compellingly makes the case for both pre-search instructions and post-search assessment to ensure that a reasonable balance is maintained between Fourth Amendment principles and the legitimate needs of law enforcement to conduct searches for digital evidence of crimes.
Ultimately, the proposal calls for state and federal legislatures to enact legislation to address the inherent tension between privacy interests and law enforcement capacity and need. Short of that, NACDL has now articulated nine core principles, eight of which embody a hybrid combination of pre-search instruction and post-search reasonableness inquiries that should be implemented immediately by magistrates and law enforcement. The ninth principle is a call for legislation to guide courts in analyzing the reasonableness of searches conducted pursuant to warrants containing pre-search requirements.
As with the model discovery proposal, the proposal addressing warranted digital searches provides a principled platform to support a broad national reform agenda. NACDL will pursue this effort both on the federal level and in tandem with local affiliates and other reform groups. Additionally, this report provides litigators with a full compendium of the emerging case law in this new digital frontier. It will serve as an invaluable resource as defense lawyers challenge overly expansive digital searches on a case-by-case basis until such time as uniform laws and procedures are put in place.
Notes
- Members of the task force include Mark J. Mahoney, William J. Genego, Peter Goldberger, Michael J. Iacopino, Joseph F. Lawless, and Ellen Yaroshefsky. The task force also includes NACDL President Theodore Simon and Past Presidents Larry S. Goldman, Jim E. Lavine, and Cynthia Hujar Orr. The discovery project was guided by Task Force on Discovery Reform co-chairs Timothy O’Toole and Professor Janet Moore, with staff support provided by Associate Executive Director for Policy Kyle O’Dowd.
- See www.nacdl.org/discoveryreform/materialindifference/.
- The bill as approved by the Board of Directors is available at https://www.nacdl.org/criminaldefense.aspx?id=31327&libID=31296.
- Vice President Gerry Morris and Past President Gerry Goldstein are the co-chairs of the Fourth Amendment Committee, and the following individuals also serve on the committee: Samuel A. Guiberson; Steven R. Morrison; Alexander Bunin; Aric M. Cramer Sr.; Robert C. Gottlieb; John Wesley Hall; Dayna L. Jones; John G. Koufos; Benjamin R. LaBranche; Charles W. Lammers; Cynthia Eva Hujar Orr; Kenneth W. Ravenell; and Matthew Sullivan. Steven R. Morrison served as reporter for this project, and National Security and Privacy Counsel Mason Clutter provided staff support.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion®.
