Working as a Zombie Law Research Assistant

From the Zombie Law blog, I learned about this post over at Nerdophiles where Sam Wildman gushes about his experience working as a "Zombie Law Research Assistant" for Adam Chodorow on Chodorow's article, Death and Taxes and Zombies, 98 Iowa L. Rev. 1207 (2013).  Wildman describes the work that he did and summarizes Chodorow's article (though to get the full experience, you really need to check out the whole thing.  Here is a version that might be easier to access than the one at the SSRN link).

Reading this made me realize that I'd found another opportunity to shamelessly plug my recent essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA Law Rev. Discourse 44 (2013).  It also made me wonder whether anybody can claim to have also been employed as a zombie law research assistant as a result of my essay.  It looks like I thanked a number of people in the first footnote, from people who were required to help me, people who volunteered suggestions, and people who gave me beer during the writing process.  I think all of these people have a feasible claim that they were zombie law research assistants.  I would certainly vouch for this if asked by a prospective employer.

From a textual perspective, however, it looks like Daniel Smith is the only person mentioned in the footnote who can claim with certainty to have been a zombie law research assistant because I thank him for "assisting in the research for this Essay."  If that isn't being a zombie law research assistant, I don't know what is.  This is an important bit of information to keep in mind, especially when applying for schools in the not-so-distant future.

A Second Amendment Circuit Split?

At the Volokh Conspiracy, Eugene Volokh posts about the Third Circuit’s opinion in Drake v. Filko.

Volokh notes that this case, or at least its analysis, diverges from the Seventh Circuit’s opinion in Moore v. Madigan (which David Kopel summarizes here, and about which Volokh posts here).  This creates a sort of circuit split (perhaps not the cleanest split because of the differences in carry restrictions), making it more likely that the Supreme Court may grant certiorari in this case – an outcome that Volokh admits is still unlikely, but more probable now than without the split.  For more Second Amendment certiorari prognostication, see Brian Doherty’s post over at the Reason.com blog.

In the meantime, this development makes the issue of carrying firearms all the more appealing for moot court problems and all the more dangerous for comment topics (since courts and scholars are more likely to cite the Supreme Court’s opinion on this circuit split than a student’s opinion).

Drone Hunting

At Lawfare, Benjamin Wittes posts about Deer Trail, Colorado’s proposed ordinance that would provide for “drone hunting” licenses.  Residents would be able to purchase an annual license for $25.00.  If a licensed drone hunter shoots down a drone operated by the United States federal government and presents identifiable parts of it to the town, the hunter would get a $100.00 reward.  When asked about whether  many drones had been seen flying overhead, the resident who drafted the bill admitted that the ordinance was “very symbolic.”

Symbolism may not be the only purpose of this ordinance.  A coworker pointed me in the direction of this story, which notes that Colorado is one of several states applying for an FAA drone testing site.  If Colorado is successful in its application, the state’s drone population will probably increase, granting newfound relevance to Deer Trail’s ordinance.

Criminal nature of destroying federal property aside, many residents are excited about the ordinance.  Some residents favor the ordinance as a money-maker, claiming that people will be tempted to purchase licenses for novelty purposes.  Others are expressing excitement about how Deer Trail may become one of the first towns to hold a “drone hunt.”

While the novelty justification may be a legitimate reason to support the ordinance, the bill will need to be revised if Deer Trail is to feasibly host drone hunts.  The ordinance in its current form is limited only to drones that are operated by the United States federal government.  Accordingly, if a Deer Trail resident shoots down a drone operated by the municipality, state, or by another resident, the hunter will not be entitled to an award under the ordinance.

The proposed ordinance should be amended and expanded to cover drones that are operated by the state or by the municipality.  This will allow for the town to purchase its own drones for the purpose of organizing drone hunts.  The ordinance should probably exempt drones owned by private citizens, since such a broad hunting license could lead to dangerous practices, and because drones in the hands of private citizens can be employed in useful ways.

Handing Down a Double Loss

This evening, I was talking with one friend about coaching and judging high school debate, and with another friend about parties who represent themselves pro per in court, and this combination of topics made me wonder if there are any reported cases where the court has managed to rule against both parties.  Back in the days when I was a high school debater, I had heard stories of debate judges giving the fabled “double loss” in exceptional circumstances, but when judging debates, I always managed to find one set of arguments I disliked more.  Maybe I’d be more flexible about the idea if I could get some precedent from actual judges.

After exhaustive research (well…one Westlaw terms and connectors search of “both parties lose”) I stumbled across the case of Gunther v. Tworek, 690 N.W.2d 885 (Wisc. Ct. App. 2004).  Overall, it is a fun little opinion that strongly conveys the court’s frustration with the parties.  The portion of this opinion that caught my eye was:

Finally, Tworek requests this court to grant him costs under WIS. STAT. RULE § 809.25(1). But while Gunther loses his appeal on whether interest was proven or calculable, all of Tworek's issues on cross-appeal are also dismissed. Because both parties lose their appeals, we will follow our standard practice and deny costs to both.

Unfortunately, this case is unpublished as well as uncitable, having been decided before 2009.  In making my argument for the double loss in a court of law, it would appear that I will need to press on without precedent.  I am not completely out of luck, however, as courts may still be swayed by the immortal words of Lord Mildew who once said “There is no precedent for anything until it is done for the first time” (quoted in Carrot & Co. v. Guano Assoc., A.P. Herbert’s Uncommon Law, p. 109, fn. 1).

Additionally, I doubt that the Wisconsin rules governing case citations apply in the debate judging context.  This is especially true for me, since I have never and probably will never judge at a competition in Wisconsin.  Gunther sounds far more convincing than secondhand anecdotes about rebellious coaches, so if debate judges are tempted to grant the double loss, I think that they should look to this case for inspiration and guidance.

Drunken Longshoremen and Statutory Interpretation

Shaun Martin posts at the California Appellate Report about the Ninth Circuit’s opinion in Schwirse v. OCWP.

Martin’s post focuses on the facts of the case, so I will not repeat them here in depth.  The main takeaways are: (1) Schwirse, a drunken longshoreman, fell at work and is seeking reimbursement for his injury, arguing that his injury was not "occasioned solely" by his intoxication, (2) contrary to everything I have heard over the past two years, law may not be the drunkest profession, and (3) the timeless warning that you should not drink beer before whiskey has gained yet another supporting anecdote.

I (bore that I am) want to add a comment on the issue of statutory interpretation present in this case.  This case involves “LHWCA” which serves a double function as: (1) the acronym for the Longshore and Harbor Workers’ Compensation Act and (2) what Schwirse probably said when he fell six feet onto a concrete and steel ledge while relieving himself.  The LHWCA presumes that longshoremen are due compensation for injuries suffered on the job, but there is a clever exception: this presumption does not exist if there is substantial evidence that the injury was occasioned solely by the intoxication of the injured employee. 

Schwirse advanced the ingenious argument his injury was not occasioned solely by his intoxication.  While his intoxication caused his accident (the fall), the injury (a lacerated scalp) was caused by his colliding with the concrete ledge.  While the alcohol played a role, it was not the sole cause of the injury. 

The Ninth Circuit rejected this argument, noting that this interpretation would render the LHWCA’s intoxication exception “insignificant, if not wholly superfluous.”  In light of the various perils a drunken longshoreman would face on the docks, I am leaning towards the “wholly superfluous” conclusion.

As a final remark on the case, I think that law students everywhere would be better off if this case were added to statutory interpretation casebooks to illustrate the principle that statutes should be interpreted in a manner that avoids rendering portions of the statute superfluous.  Somebody should also tell Justice Scalia, in case he wants to release a second edition of Reading Law.

Law Review and Journal Submission Information

Slating season is coming.  Do you have a game plan?  The following resources are good places to start.

Law Reviews and Law Journals - The submission guide, by Allen Rostron and Nancy Levit is here.
Online Journal Supplements - The submission guide, by Colin Miller is here.

Also important to know:

The Green Bag - "We welcome anything law-related, intelligent, well-written, and short (5,000 words / 50 footnotes max)."

Prosecutors: Dot Your I’s and Cross Your T’s

Shaun Martin at the California Appellate Report posts about a recent decision by the California Supreme Court.  In this case, the defendant challenged his conviction for selling MDMA, arguing that the prosecution failed to sufficiently prove that MDMA was an illegal controlled substance.

The prosecutor presented evidence from a criminalist that the substance the defendant was “MDMA or Ecstasy.”  The criminalist’s lab report identified the chemical name of MDMA: “3,4-methylenedioxymethamphetamine.”  A police officer testified that MDMA was “a party drug, the effects of which can last up to 24 hours.”

And that was it.

I think some argument could be made that the jury could reasonably interpret this evidence to show that MDMA is a controlled substance.  “Party drug” might imply that the drug has effects similar to amphetamines and the chemical’s name contains “methamphetamine.”  It looks like the attorney general made these arguments.

The California Supreme Court didn’t buy it.

The lesson prosecutors can learn from this case is to always remember to prove every element of the case.  If the illegal drug is not identified by name in the Penal Code, the prosecutor needs to provide at least some evidence that shows that the drug is an analog and has similar effects to illegal, controlled substances.  At the trial level, there was virtually no evidence to this effect -and the California Supreme Court was right to call out the Court of Appeal’s use of “learned treatises” in affirming the conviction.

Finally, this lesson is especially important because if a verdict is overturned due to insufficient evidence, there is no chance of retrial due to double jeopardy concerns.  It isn't easy for defendants to lodge a successful complaint under the sufficiency of evidence standard, but when they do, it's all over for the prosecution.

UPDATE - January 26, 2014

I have changed the title of this post from the earlier, ironic "Prosecutors: Dot your T's and Cross Your I's."

Psychopaths' "Empathy Switch"

The BBC reports on a recent study that indicates that psychopathic criminals are not devoid of empathy - rather they have a "switch" that can turn empathy on or off.  This switch may be activated if the psychopath is directed to consider the feelings of others.

This finding contradicts a common assumption that psychopaths simply lack the ability to empathize with others.  Furthermore, because this switch can be activated under certain conditions, this may point therapists in the direction of finding a way to shift psychopaths' empathy switch from its default "off" condition.

This finding has important implications in the fields of philosophy and, by extension, certain aspects of criminal law.  Psychopaths are a common thought experiment in philosophical discussions of moral responsibility.  The common question is: can psychopaths be morally responsible for their actions if their lack of empathy prevents them from understanding the full import of their actions' effects on others?  This finding indicates that psychopaths may present less of a moral problem.  If psychopaths can, in certain conditions, empathize with others, holding them responsible for harming others is an easier task, since it is possible for psychopaths to understand the full import of their actions.

By extension, this finding may reconcile some tension between the philosophical questions of moral responsibility and the practical questions of criminal responsibility.  Criminal law's intent requirements operate whether or not the defendant is capable of empathizing with the victim - if the defendant knows the criminal nature of what he or she is doing, he or she will be punished.  This approach seems to require a compromise with the notion of the pure psychopath.  The psychopath who cannot feel empathy seems to be punished disproportionately compared to other actors because this psychopath will probably view his or her actions as less morally wrong compared to an actor who can empathize with the victim, and nevertheless harms the victim.

If, however, psychopaths have the ability to switch their empathy on or off, the fact that psychopaths do not feel empathy at the time they harm their victims becomes less of a problem.  In light of this new research, it is not correct to say that psychopaths cannot view their actions in the same moral light as other actors - the psychopaths simply don't view their actions this way as often.  If lack of empathy is more of a choice than a condition, then psychopaths' failure to grasp the moral import of their actions follows from something that is (potentially) within their control.  It seems much more intuitive to fully punish defendants who choose not to understand the full moral import of their actions as opposed to those defendants who cannot understand the full moral import of their actions.

Hopefully this research leads to further techniques that can ensure that psychopaths' feelings of empathy become an obvious choice to them.  Once this choice is apparent, psychopaths will cease to be defendants who cannot feel empathy and will instead be defendants who choose not to feel empathy.

Trial by Combat

One of my favorite law journals is the Green Bag:An Entertaining Journal of Law. The journal publishes lighthearted and interesting pieces, such as Brian Garner’s criticism of law review footnote practices about which I posted here and a micro-symposium on Orin Kerr’s “A Theory of Law."

The over-attentive reader (or normally-attentive citechecker) will note that the full title of the journal is “The Green Bag 2d.”   This is because the journal was inspired by the “original” Green Bag, a legal magazine that was published between 1889 and 1914.  Last year, I stumbled upon UCLA Law Library’s collection of these older volumes and.  Upon seeing the journal’s full title of “The Green Bag: A Useless but Entertaining Magazine for Lawyers,” and desperate for something to distract me from my impending finals, I began reading through some of the earlier volumes.

In my reading, I came across a number of quirky articles about legal history.  I will occasionally post about some of the more memorable articles I found.  While these articles’ primary goal seems to be to highlight historical curiosities, I have found that they also provide a unique perspective on modern law.  They also make you look smart if you discuss them at parties.  My first post on one of these articles follows the jump.

Propensity Evidence, Due Process, and the Limits of Arguments From History

My work this summer and last summer has focused my attention on California’s criminal law more than the criminal law of any other state.  Every once in a while, however, an errant citechecking click or an event in the news will clue me in to the criminal laws of other states.  One such citechecking click occurred during one of my earlier assignments, which led me to find an interesting difference between the law of California and the law of Iowa.

As a general rule, evidence about a defendant’s prior bad actions cannot be admitted to show that the defendant had a propensity to do bad actions.  There are, however, some exceptions to this rule.  Federal Rules of Evidence 413 and 414, for example, permit evidence of the defendant’s commission of prior sexual assaults and child molestation in cases where the defendant is charged with sexual assault or child molestation.  In a similar manner, California Evidence Code, section 1108 allows for the admission of prior commissions of sexual assault in cases where the defendant is charged with sexual assault.  These rules have been upheld despite defendants’ arguments that allowing propensity evidence violates due process.  The main California case on this point is People v. Falsetta, 986 P.2d 182 (1999).  The Falsetta court held that it was not clear that a ban on propensity evidence was a fundamental part of California’s legal history, noting that courts had historically been far more lenient in allowing evidence of propensity in sex offense cases.  The court further noted that even if the principle against propensity evidence were sufficiently fundamental in sex offense cases, 1108 did not unduly offend the principle because it was a narrow statute and subject to the limitations of other evidentiary rules.

In contrast, the Iowa Supreme Court struck down a similar rule, Iowa Code 701.11, in State v. Cox, 781 N.W.2d 757 (2010).  Recognizing that the general history of propensity in sex offense cases suggested that courts would sometimes allow evidence of prior sex offenses, the court clarified that Iowa courts would typically require the evidence of the prior offenses to be “relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.”  Because propensity evidence had never been admitted solely to show the defendant’s propensity, and because there were longstanding “deep concerns” over admitting this evidence, the court held that 701.11 was unconstitutional.

After an initial reading, both of these cases seem to illustrate the importance of history in making an initial determination of whether a law violates due process, with the Falsetta court relying on ambiguity indicated by several cases and treatises and the Cox court relying on a rule drawn from a number of cases.  But both of these cases also illustrate the limitations of history in determining whether a law violates due process.  The Falsetta court noted that there were a number of limitations on 1108, with other rules still limiting evidence that is unduly prejudicial and the rule only applying to sexual assault prosecutions.  On the other hand, the Iowa statute contained the same limitations, but the Cox court still concluded that it violated due process.

The courts seemed to reach these different conclusions by focusing on different values throughout their due process analysis.  The Falsetta court focused on the importance of successfully prosecuting crimes that are typically committed in private, noting that propensity evidence will help victims bolster their credibility compared to the defendant.  The Cox court focused on the inherently prejudicial nature of propensity evidence and noted that past crimes are not probative of future crimes.  When two courts value fundamentally different concepts, it should not be surprising when they end up reaching different conclusions.

Responding to the Zombie Apocalypse: Yet Another Step in the Right Direction

Fredrick Vars posts at PrawfBlawg about the "Crisis in Federal Criminal Defense."  Citing the Huffington Post and the New York Times Editorial Board, Vars notes that sequestration is undermining numerous federal public defender offices to the point of causing irreversible damage.

This is yet another of many wise steps our government is taking to proactively mitigate the damage that will be caused by the inevitable zombie apocalypse.  As I wrote in my recent essay (about which I post here), federal criminal laws are one of America's strongest safeguards against zombies.  The broad scope, strict liability, and mandatory restitution of many of these laws will ensure that zombies are effectively prosecuted and fined -- with their wealth transferred to the living.

The evisceration of federal public defender offices will further protect the United States from the zombie horde by ensuring that zombies prosecuted for violation of federal criminal laws will not be defended.  Removing federal public defenders will both ensure efficient prosecution of zombies and prevent the zombies from infecting the attorneys who attempt to defend them.  In light of these many benefits, it is unclear why commentators are lamenting the devastation of federal public defender offices.

Admittedly, a few non-zombie defendants will suffer because of the sequestration due to the inability of their resource-starved attorneys to mount an effective defense.  This is the small price society must pay to ensure the continued survival of the living over the undead.

Greg Abbott: Putting Legal Accomplishments Through the Political Filter

Rarely can one make the jump from lawyering into lawmaking without saying things that are exaggerated, misleading, and generally annoying to people like me who like to focus on the law.  Texas Attorney General Greg Abbott is no exception.

Abbott is running for governor of Texas with the slogan of "I go into the office, I sue the federal government, and then I go home."  Sounds like he'll be popular.  This article , while positive in tone, reveals an array of credentials that turn out to be underwhelming upon closer examination.

Take the article's claim that "Abbott has secured either a definitive win or a largely favorable outcome in nine cases."  As examples, the article mentions a 2010 lawsuit against the Department of Education arising from an amendment to a spending bill.  The lawsuit was dropped when the Congress repealed the amendment -- making it tough for me to see how Abbot "secured" the outcome.  It looks like the same may be true of Abbott's lawsuit against the Obama Administration's moratorium on offshore drilling -- a suit that the article says was dismissed when the moratorium was dropped.

Or take Abbott's valiant defense of his citizens' Second Amendment rights.

"When our Second Amendment rights were threatened, I led a team of states to the defend firearm freedom all the way to the United States Supreme Court and we won," Abbott has said.

What does he mean?

Abbott's office announced in March 2010 the attorney general had filed a brief "on behalf of 38 state attorneys general" and attended oral arguments in the case of McDonald v. Chicago, concerning a ban on handguns in the city. The high court eventually ruled the ban in violation of the Second Amendment, incorporated by the Fourteenth Amendment to apply to states as well as the federal government.

What does this mean?  Abbott filed an amicus brief with the court on behalf of the states, joining a chorus of 32 other amici.  The briefs that were actually argued before the Court were submitted by the parties to the case.  Abbott's "attending" oral argument apparently means that Abbott sat in the room while the case was argued by Alan Gura, Paul Clement, and James Feldman.

This is not to say that filing an amicus brief in a case is not an achievement.  As somebody who will be in Eugene Volokh's Amicus Brief Clinic this coming semester, I should be the last person to downplay the value of the added perspective and variety of arguments these briefs can bring to a case.

Of course, if I write an amicus brief in favor of a party that wins, I am not going to claim that I took the case to court and won.  After all, a statement like that could be viewed as me implying that I have the legal know-how and accomplishments of advocates who are far more talented and knowledgeable than me.

Prosecuting the Undead: Federal Criminal Law in a World of Zombies

Following up on yesterday’s post about the value of online law review supplements, I am pleased to announce that Discourse, the online supplement for the UCLA Law Review, has published my essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies.  The essay can be downloaded from the UCLA Law Review website here or from my SSRN page here.  Here is the abstract:

Adam Chodorow’s recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the looming zombie apocalypse. Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the undead outnumber the taxpaying living. In this Essay, I argue that while tax law may be ill suited to address the zombie apocalypse, federal criminal law offers an alternative approach to solving the problems that Chodorow identifies. In fact, the only plausible explanation for the existence of seemingly pointless features of federal criminal law is that these features are precautions for this imminent disaster. The extensive scope of the federal criminal law, its frequent use of low or nonexistent mens rea requirements, and federal laws concerning mandatory victim restitution create a legal structure that can effectively transfer resources from the undead to the living. Until the zombies arrive, these features will remain largely ineffective.

This satire on the scope of federal criminal law is only one of many areas of law where I think the use of zombies is informative.  Do not be surprised if you see more future blog posts (or if I’m lucky, publications) on other areas of zombie law.

Cell Phone Location Data and (Almost) The Fourth Amendment

From the Jurist (via the CrimProf Blog):

The New Jersey Supreme Court [official website] ruled [opinion, PDF] Thursday that police must obtain search warrants before obtaining tracking information from cell phone providers. The unanimous ruling marks the first time a state supreme court has recognized a Fourth Amendment [Cornell LII backgrounder] protection for cell phone location data. In the decision, Chief Justice Stuart Rabner noted that cellphone tracking technology has the potential to violate a person's privacy rights and must be subject to judicial review. Rabner also noted that no warrants will be required in emergency situations.

I recognize that this is an interesting issue and that the case highlights an important division in jurisdictions on whether the Fourth Amendment applies to cell phone location data.  This post is incorrect, however, to claim that the New Jersey Supreme Court recognized a Fourth Amendment protection for cell phone location data.  While the opinion nicely summarizes the relevant federal Fourth Amendment case law, pages 33-34 of the opinion make it very clear that the decision is based solely on Article I, Paragraph 7 of the state constitution, which has historically been the basis for greater protections than the Fourth Amendment (26).

Despite the opinion’s basis in state, rather than federal, constitutional law, the opinion contains good discussion regarding the rise of cell phone use and why users reasonably expect the locations of their cell phones to be private.

An Excellent Resource for Law Students: Colin Miller’s Online Law Review Supplement Submission Guide

At EvidenceProf Blog, Colin Miller posts, announcing an update to his Submission Guide for Online Law Review Supplements.  Miller announces that he has updated the guide so that it is current for 2013, and has added several additional online supplements to the list.

I have quickly looked over Miller’s submission guide and it looks like an excellent resource for law students who are interested in getting published.  One of the more aggravating problems that I ran into when I was trying to publish papers was that I would be rejected by general law reviews due to my student status, despite their lack of any express policy that they do not publish student work.

Online supplements, on the other hand, are generally more accepting of work written by students from other law schools.  Many of their policies expressly state that they consider work by students from other schools.  I know of at least one other student at UCLA who has had work published in an online supplement at another school.

I think that publishing in online supplements is a great idea for students.  Miller explains in this post why publishing in these supplements is a good idea for professors, and I think many of his reasons apply to students as well.  To add my own reasons, first, many of these supplements appear in the journal and law review databases of Westlaw and Lexis, meaning that lawyers and scholars doing research will read work published in online supplements.  Second, as Miller notes in his post announcing his updated submission guide, there is a growing trend with top journals adding supplements, indicating that this forum may be gaining more acceptance in legal scholarship.  Finally, a publication in an online supplement is still a publication, and carries with it the many bonuses that a publication entails, such as distinguishing one’s resume from the rest of the pile and catching the eyes of interviewers and drawing them into lines of questions that the interviewee will be well-prepared to discuss.

Students should consider publishing in online law review supplements, and Miller’s guide is a huge help for keeping the various requirements and submission procedures organized.  

Black Boxes in Cars

Via the CrimProf Blog, I learned about this article in the New York Times which discusses the use of event data recorders, or “black boxes” in vehicles.  These devices gather an increasing amount of information, including the speed of the vehicle, whether the vehicle’s brakes were employed, and whether occupants of the vehicles were using seat belts.  The article notes that these devices, originally designed by manufacturers to analyze the safety and performance of vehicles, are increasingly being used as evidence in criminal investigations and lawsuits.

I would like to add to the the article’s general discussion of black boxes by noting that, from what little I have read about their use in criminal cases, the use of these devices may be hard to challenge on constitutional grounds.  The case that came to mind when I read this article was People v. Diaz, 153 Cal. Rptr. 3d 90 (2013), where the government relied on information collected from a vehicle’s sensing diagnostic module (SDM) to determine the speed of the vehicle before a drunk-driving accident.  The SDM seems to collect data in a similar way to the devices discussed in the New York Times article.  The defendant argued that the collection of information from the SDM was a search under the Fourth Amendment, but the court disagreed. 

The court held that there was no reasonable expectation of privacy in the SDM information because the data that the police used was all information that the defendant had revealed to the public.  Anybody who happened to see the vehicle travelling on the road would have been able to see the speed of the vehicle, and the SDM did not collect anything beyond this publicly visible information. 

As an aside on this prong of the analysis, I am interested in seeing how this argument would hold up in a case that involves a question of whether somebody in the vehicle had his/her seat belt fastened, since this is information that black boxes collect, but not information that is as clearly visible to observers of the vehicle.

The court further held that United States v. Jones, 132 S. Ct. 945 (2012) (holding that police attaching a GPS device to a vehicle is a search within meaning of Fourth Amendment) did not apply, noting that the police did not attach the device – it was installed by the vehicle manufacturer and was only recovered from the vehicle by the police.  Furthermore, the court invoked the third-party doctrine, citing Smith v. Maryland, 442 U.S. 735 (1979), a case where the court held that officers’ use of a pen register – a device installed at a telephone company that collected the numbers that the defendant dialed – was not a search within the meaning of the Fourth Amendment because the defendant had volunteered the information to a third party, the phone company.  Here, the defendant driving the vehicle is volunteering information to the vehicle manufacturer, and thereby assumes the risk that this information can be transferred from that third party to the authorities.

In light of the Fourth Amendment’s apparent inapplicability to black boxes, the main focus shifts to the question of whether these devices are sufficiently reliable as evidence.  The article hints that there has been some criticism but really does not go into any depth beyond noting a case where evidence was excluded because the judge thought that there needed to be verification of the device beyond the testimony of a defense expert alone.  This seems easy enough to overcome, since parties who retrieve the information can document their procedures in depth so as to accommodate verification, or coordinate with the other party or vehicle manufacturer when retrieving information.  This question will probably become less and less of an obstacle as these devices are used in more cases and become even more universally used than they already are.  Wider usage will help iron out any current defects and will also foster the development of standards for the downloading and interpretation of collected data.

Ultimately, I think that the reliability of these devices will not be a substantial obstacle to the use of this data in cases, but I think that the Fourth Amendment questions might be a little more complicated than the Diaz court suggests.  It will be interesting to see how various jurisdictions approach the question as the use of these devices in vehicles and in cases increases.

A Compelling Demand Letter

Shaun Martin posts about a recent California Court of Appeal case, Malin v. Singer at the California Appellate Report.

Martin summarizes the case pretty well, which involves an anti-SLAPP motion in response to an extortion suit.  What this basically means is that the plaintiffs sued for extortion and the defendants responded by arguing that this lawsuit is meritless and was filed to quash speech that is protected by the First Amendment.  The court quoted the contents of the letter.  Here is the boring, normal part:

I am litigation counsel to Shereene Arazm. I am writing to you with respect to your outrageous, malicious, wrongful and tortious conduct. As a result of your embezzlement, conversion and breach of fiduciary duty, you have misappropriated more than a million dollars from my client. As a result thereof, my client intends to file the enclosed lawsuit against you, Lonnie Moore, and various business entities that you and Mr. Moore control. As alleged in the Complaint, you, Mr. Moore and several of your co-conspirators have been embezzling and stealing money from Ms. Arazm and Geisha House, LLC for years. As set forth in detail in the Complaint, you and Mr. Moore have devised various schemes to embezzle money from the restaurants and clubs which you own and/or manage, including, but not limited to Geisha House and WonderLand. You and Mr. Moore have created a special account or ‘ledger,’ which allows you to keep tabs on how the stolen funds are divided among you, Mr. Moore and your various co-conspirators. My client intends, as part of the lawsuit, to seek a full-fledged forensic accounting of the books and records for Geisha House, LLC, 2HYPE Productions, Inc., LTM Consulting, Inc., and Malin & Moore Enterprises, LLC, in addition to your personal accounts.

In addition, as set forth in the Complaint, we have information that you and Mr. Moore have engaged in insurance scams designed to defraud not only the insurers of your establishments, but also the insurers of WonderLand. You have also taken steps to hide your assets from creditors as well as from the taxing authorities. We are aware that you have converted my client’s monies and deposited them in accounts in the Cook Islands.

We have also confirmed that you have planned to illegally transfer your shares in Geisha House Los Angeles to Sylvain Bitton in a further attempt to hide from creditors and avoid tax liability.

Here is where it gets interesting:

Because Mr. Moore has also received a copy of the enclosed lawsuit, I have deliberately left blank spaces in portions of the Complaint dealing with your using company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge [name redacted] a/k/a ‘Dad’ (see enclosed photo), and many others. When the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.

My client will file the Complaint against you and your other joint conspirators unless this matter is resolved to my client’s satisfaction within five (5) business days from your receipt of this Complaint. . . . (Italics added.)

The court then quoted the relevant part of the draft complaint:

[O]ver the past several months, _______________ has arranged through email and through Internet websites such as craigslist.org to have multiple sexual encounters with [redacted] which include _________________________. Based on information and belief, _______________ used company resources to facilitate these rendezvous and to communicate with various [redacted] including _______________, _______________, and _______________.

Strong writing all around.  My favorite line is “(see enclosed photo).”

The court concludes that this is not extortion for a few reasons.  First, the court notes that the sexual information is related to the subject matter of the lawsuit because it allegedly involved embezzled money.  Second, the court notes that third parties are not being threatened by this letter within the meaning of the extortion statute because the third parties need to be related to the threatened party.

Since my internships so far have all been working for the government in a criminal prosecution context, I have not yet had the opportunity to write a demand letter.  Fortunately, this opinion seems to provide a compelling, and apparently not-extortive, template.

Correcting Confusions about Self-Defense Law

Over at the Volokh Conspiracy, Eugene Volokh posts about some of the confusion over self-defense law that is surfacing in news coverage of the Zimmerman verdict.  Volokh notes that various branches of the New York Times seem to be writing that stand your ground laws are an extremely recent phenomenon, something that Volokh notes is not the case since this seemed to be the majority rule for jurisdictions in 1968.

Volokh also criticizes the New York Times Editorial Board for writing that the main reason why Zimmerman was so likely to succeed in his defense was that the stand your ground law required that Zimmerman only needed to prove that he reasonably believed that deadly force was necessary.  Volokh correctly notes that this is a misstatement of the stand your ground law, which addresses duty to retreat.

Where I think Volokh makes a mistake, however, is where he says that the requirement that a defendant reasonably believe that deadly force is necessary to avoid death or grievous bodily harm is the law in all 50 states.  This rule is certainly the law in a majority of jurisdictions, but it is not universal.  

Three states employ a subjective approach, which simply requires that the defendant believe (reasonably or not) that deadly force is necessary to avoid death or grievous bodily harm. These states are: Delaware (Moor v. Licciardello, 463 A.2d 268, 272 (Del. 1983)), Ohio (State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998)), and Virginia (Yarborough v. Com., 234 S.E.2d 286, 290 (Va. 1977)).

A cluster of other states employ a Model Penal Code approach, where defendants may receive lesser sentences even if they less-than-reasonably believed that they were in danger of death or grievous bodily harm (for instance, a defendant who negligently believes he is in danger when he, in fact, is not, will be convicted of negligent homicide, or whatever crime corresponds to homicide committed when the defendant is negligent). These states do allow for self-defense in the event that a defendant prove he or she had a reasonable belief that deadly force was necessary to prevent death or grievous bodily injury, but the overall schematic seems more complicated than jurisdictions that only allow the reasonable belief option. These states are California, Kentucky, Maryland, Nebraska, North Dakota, and Pennsylvania (If I include citations for all of these, I'll run out of room. I am getting all of this from my paper on this subject).

Volokh’s mistake here is minor, since the vast majority of jurisdictions follow the reasonable belief approach.  The major mistake rests with the New York Times Editorial Board for portraying this approach as 1) uncommon and; 2) lenient, since compared to Model Penal Code and subjective jurisdictions, the reasonable belief formulation of self-defense is the hardest for defendants to prove.

While the general tenor of the Editorial Board’s argument is that conceal and carry laws are to blame for the tragedy, the Board’s focus on this policy argument at the expense of legal accuracy causes them to jettison their credibility.  There are important issues to discuss here, but muddling things together will take the debate nowhere.

Zero-Day Exploits and Cyberwarfare

On Sunday, Lawfare’s Paul Rosenzweig authored an interesting post discussing zero-day exploits.  Zero-day exploits are flaws in the code of programs that are unknown to software manufacturers.  Because they take advantage of unknown problems, it is virtually impossible to defend against an attack that employs a zero-day exploit.  This means that security considerations demand a different approach to zero-day exploits compared to defense against other, well-known attacks such as Directed Denial of Service (DDoS) attacks, where hackers use programs to gain control of a network of computers and launch organized, repeated data requests that seek to knock systems offline.

Rosenzweig notes that zero-day exploits are troubling not only because they can cause substantial, unexpected damage, but also because they can be discovered with relatively low resources.  He critiques the National Defense Authorization Act’s (NDAA’s) current policy on preventing the proliferation of cyberweapons, arguing that the Act seems “off-target.”

Aside from the act being vague, it is not clear what specific problems Rosenzweig has with the NDAA.  The act does note that one of the goals of the interagency process for dealing with the proliferation of cyberweapons is to identify relevant cyberweapons.  The act also notes that the agency may take financial measures to prevent the proliferation of these cyberweapons, although the apparent focus of these measures is financial sanctions, with §946(b)(2) identifying financial tools as “financial sanctions” tools.  While financial sanctions may be a useful mechanism for combating organizations that purchase and sell zero-day exploits, this should not be the only tool available for combating these weapons.  The government’s financial tools should probably include measures that allow the purchase of zero-day exploits.  Even if the government does not use them, it is better that the government have the exploits to either fix the errors the exploits are designed to exploit or to prevent another buyer from getting hold of the exploit.

Even with financial measures to purchase zero-day exploits, the ease with which zero-day exploits can be discovered and sold means that their use against the United States is likely inevitable.  In light of this, I found Derek Bombauer’s article, Ghost in the Network, 162 U. Penn. L. Rev. (forthcoming, 2014), to be a thorough and innovative treatment of this problem.  If the government focuses on taking mitigative rather than preventative measures against inevitably successful attacks, this strategy will not prevent all damage from these attacks, but it will be a far more effective strategy overall.

Reaction to the Zimmerman Verdict

I have seen dozens of reactions to the Zimmerman verdict this weekend that express reactions across the joy-rage spectrum.  Some folks get the law right, many of them don't, and there are many ships passing each other in the night as far as arguments are concerned.  Starting tomorrow, I expect to see the first salvo of critiques of this weekend's criticism.

In the volumes of coverage, I have found a few reactions that I think are worth reading.  PrawfsBlawg's Dan Markel posts about some of the tangled legal analysis of other reactions so far and directs reform-oriented critics to focus more attention on whether the state or defendant bears the burden of proof.  Eugene Volokh confirms that Florida is not an outlier in this area of law, with 49 out of 50 states requiring the government to prove beyond a reasonable doubt that the defendant did not act in self-defense as long as the defendant puts forth some evidence of self-defense.

As far as Florida's "stand your ground" law goes, Markel notes in his earlier post that the Zimmerman case and the facts that ultimately were most important do not make this case a good example of that law in operation.  Despite this, the case has at least gotten people talking about the law.  Here is of the more interesting posts I've seen on the subject that explains the controversy in far more detail and depth than I could hope to contribute at this point.  While I agree with Markel in that I don't think that the Zimmerman case is a particularly accurate instance of this law in action, that law is still an important issue and the fact that it does not apply 100 percent to the Zimmerman case should not distract from the very real arguments that can be made for and against stand your ground laws.

As far as my own reaction to the case, I've spent most of this past year studying self-defense and I can say with confidence that it is very difficult to have an accurate, knee-jerk reaction to this area of law.  Self-defense law involves competing considerations on the social, political, and philosophical levels, with different debates to be had in each area.  These different levels of debate lead to different conclusions.  One might find that, depending on the premises one proceeds from, one's philosophical considerations support one type of self-defense law, but social/political considerations support an entirely different one.  When it comes to arguing about whether self-defense law should fit into, say, what free will considerations demand versus what critical race considerations demand, the debate can get dangerously muddled.

I will admit that was a pretty vague paragraph.  If you're interested in the details of what I think about self-defense law and you have a lot of time on your hands, feel free to read this draft of a paper I am writing, where I lay out some arguments of my own on the subject.

With the complexities of the law and legal issues in mind, and the varied accounts that I have heard about the evidence involved in the Zimmerman case, I am going to remain agnostic on the verdict.  I do think that the case can serve as an illustration of some important issues of self-defense law as well as the role of race in the criminal justice system in general.

I am not going to say that "we need to have a discussion."  That sort of conclusion signals nothing more than punting on the issues. Moreover, if you read my paper, you'll see that the discussion has already been underway for some time.  I mainly look forward to seeing who gets involved now, and how much of an impact this discussion ends up having now that so many people are paying attention.

Irresistible Employees Case Outcome Unchanged

Looks like my earlier post  about the Iowa Supreme Court's decision that employers could fire employees on the basis of the employer being attracted to the employee was too optimistic.  After reconsidering the result, the Court reached the same decision, albeit with a bit more explanation in the wake of critical media coverage.

I won't pretend to know very much about employment law, nor do I want to repeat what I said the first time I discussed this case, so for analysis of the opinion, you'd be best off checking out posts here and here.

Bad Titles

Via the Legal Writing Prof Blog, I learned of a recent talk by Bryan Garner that appears in the current issue of The Green Bag.  I found this piece amusing, and I think that it should be required reading for any student who is an editor of a law review or law journal.

One of Garner’s various proposals for rules that law review editors should enact is a 20-word limit on article titles.  Garner provides an example of an article that violates this rule:

The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECtHR: An Effective Antifragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration

Garner’s proposal is something that I probably already implicitly follow.  While I do not count the number of words in the titles of articles I read, I am far less likely to take an article seriously if my first impression of the article is something as ungainly as the title above.

In the spirit of Garner’s commentary, I think that there should be some other rules that govern article titles.  The rules I propose are inspired entirely by this gem that I stumbled upon during my research today:

“Whoever Fights Monsters Should See To it That in the Process He Does Not Become a Monster” [Footnote]: Hunting the Sexual Predator With Silver Bullets - Federal Rules of Evidence 413-415 - and a Stake Through the Heart - Kansas v. Hendricks

(49 Fla. L. Rev. 505, 562 (1997)).  That entire block of text is the article’s title.  From this single example, prospective authors can learn several lessons.

·         Bryan Garner’s 20-word limit for titles seems to be an even better idea than before.

·         You should limit quotes in your title to 10 words (if you for some reason feel the need to include a quote in the first place).

·         While I like Nietzsche as much as the next guy, if you include a quote in your title, it should be easily recognizable by readers of all backgrounds…

·         …Because if the quote is not recognizable, you will be tempted to put a footnote in the title.

·         Don’t use weird metaphors in your title.

·         And for God’s sake, don’t explain each term of your title’s metaphor in your title.

Guberman on Writing Motions

Over at The Volokh Conspiracy, guest blogger Ross Guberman has been authoring some very interesting posts about legal writing.  Guberman’s earlier posts highlighted his picks for the top writers on the Supreme Court, with Roberts as his pick for the conservatives and Kagan as his pick for the liberals.

I found Guberman’s post from today to be especially helpful.  Guberman describes several steps that attorneys can follow to make their trial filings more readable, compelling, and memorable.  While Guberman’s focus in this post is on filings before trial courts, the lessons here for the most part seem applicable to appellate brief writing – and those pieces of advice that conflict with appellate formatting are at least based on writing themes that apply to all levels of legal advocacy. 

I found the last point on parentheticals to be the most helpful piece of advice.  Guberman notes the importance of maintaining a consistent approach to your parentheticals and offers the following good example from a brief by Morgan Chu:

Defendants should not be heard to complain that they did not have Alpha Holdings’ documents prior to Mr. Gordon’s deposition when Defendants did not even subpoena Alpha Holdings for documents until after Mr. Gordon’s deposition. See E.E.O.C. v. Honda of America Mfg., Inc., 2008 WL 440437 at *6–7 (S.D. Ohio February 13, 2008) (refusing to permit the re-deposition of a witness because the deposing party failed to pursue obvious avenues for discovering documents before taking the deposition).

All too often I find myself inserting the redundant term “holding” or oversummarizing the cited case.  Adopting a uniform strategy, especially one modeled on this example, helps avoid these problems.  This is especially helpful when space constraints require one to choose parenthetical citations over drawn-out analogies.

"Emotional Stability" and Firearm Possession

Over at The Volokh Conspiracy, Eugene Volokh posts about In Re Hahn, a New York case where the court refused to renew the petitioner's pistol license.  The petitioner had been previously involved in a scuffle that resulted in a conviction of menacing in the second degree and criminal mischief in the fourth degree.  In denying the petitioner's request to renew his firearm license, the court deferred to the licensing agency's characterization of the petitioner's demeanor as "bizarre and irrational" and that he "lacked the self-control necessary to carry a weapon."

The petitioner noted that the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) had suggested that firearms could be restricted from those who are deemed to be mentally ill, and that no such finding of mental illness had occurred in this case.  The court noted that Heller's list of (potentially) acceptable situations where firearms could be restricted was not exhaustive and that in a situation like this where there is some sort of detail set forth about the emotional health of the applicant, the court's denial does not violate the Second Amendment.

I don't think that the court's reasoning is correct.  This decision will apparently restrict the applicant from possessing a firearm in the home, a right that Heller says is protected by the Second Amendment.  This restriction seems to be based on a determination of how the applicant acted in the hearing and whether the court thought the applicant was antagonistic or had emotional outbursts.  The vagueness of this determination aside, the court's invocation of Heller's list of situations where firearms could be acceptably restricted is an apparent assertion that this situation is simply an unlisted scenario where it is acceptable to restrict firearms.

By extending the list of outright exceptions to Heller's holding that firearms in the home are protected to a situation as subjective and undefined as a lack of emotional stability, the court expands the exception to the point where it swallows any meaningful protection that Heller offers.  Courts typically conclude that if a restriction falls into Heller's various "exceptions," such as restrictions of firearm possession by felons, the mentally ill, and possession of firearms in schools or government property, the restriction does not violate the Second Amendment.  By citing Heller's list of exceptions, courts are usually able to uphold these restrictions without needing to worry a great deal about levels of scrutiny since Heller seems to have already reached a conclusion on these restrictions.  Here the court seems to be taking a similar approach: by categorizing its restriction on the firearm license as an unlisted Heller exception, the court is able to approve of this restriction without invoking any rational basis, intermediate, or strict scrutiny analysis.

Admittedly this case may have been decided the right way.  The trial court was able to directly observe the applicant and indicate that the applicant was behaving in a combative manner.  Given the applicant's repeated instances of emotional outbursts in the presence of the court, the court may have had a moderately strong argument that the applicant should not have his license renewed.  Notwithstanding these facts in support of the court's ruling, the garbled reasoning of the court prevents any systematic review and analysis of the arguments that could have been made.  By relying on an unwritten Heller exception, the court does not specify any level of scrutiny and fails to create a workable test.  While the applicant may very well have not deserved a firearm license, the court's failure to clearly enunciate why this denial is acceptable under any level of scrutiny is an unacceptably opaque way of reaching this conclusion.

A Modern Third Amendment Case

Over at the Volokh Conspiracy, Ilya Somin posts about a Nevada lawsuit against the police based on the Fourth Amendment, state law, and, interestingly, the Third Amendment.  The plaintiffs contend that police intrusion into their home for purposes of maintaining a lookout position over the plaintiffs' neighbor violated their Third Amendment rights against the quartering of soldiers in their home.  According to the complaint, the rights violation occurred when the police broke into plaintiffs' home, fired multiple nonlethal rounds at one of the plaintiffs, arrested them for obstructing a police investigation, and maintained a lookout of the neighbor's house.

Somin notes the obvious problems with this theory, noting that police are not soldiers and also pointing out that the Third Amendment has not been incorporated against the states.  Somin also points out that the Third Amendment is still worthy of consideration, noting a history of violations that are not often recognized.

I think that there is an additional problem with the lawsuit, since the Third Amendment is a prohibition on soldiers being "quartered" in homes, rather than simply intruding into homes.  Police acting as lookouts on a nearby home probably would not constitute the "quartering" of soldiers--almost certainly not under any original understanding of the Third Amendment, which was enacted in response to the quartering of British soldiers in the colonies.

Despite the various problems with this lawsuit, I still find the Third Amendment to be worthy of attention, if for no other reason than it is of historical interest.  I also think that there have been some modern events that -- if they occurred in the United States -- could raise stronger Third Amendment concerns.  Take, for example, this story from 2012 where the British military installed missile turrets on various apartments surrounding the Olympic stadium for purposes of preventing terrorist attacks.  If a similar situation were to arise in the United States, this would probably raise a stronger Third Amendment case than the Nevada case.  While there would likely be "quartering" concerns, since there is no indication that military personnel are not being housed at the apartment, the permanence of the installation and their military nature would be at least a plausible Third Amendment violation.  I have also seen the Third Amendment mentioned in the cybersecurity context where the government requires the installation of security programs, though I have not had enough time to explore this or see how it would overcome several very obvious problems.

While I think the Nevada lawsuit's Third Amendment claim is not going to survive, I do think that the Third Amendment is interesting and something that I will look into more in the future.

"Write! Submit! Publish!"

Students at UCLA Law are used to hearing me shout these words constantly.  Most of the time I shout at them, but sometimes I am mistaken and end up yelling at an undergraduate or other visitor who has stumbled into our insular community.  Occasionally, other law students are foolish enough to listen to me and they too get to experience the joy that is academic legal writing and publishing.

Students who are interested in the publication process should pay close attention to this piece by William Foster in the Green Bag  (h/t: Legal Writing Prof Blog).  Based on my experience so far, I think that it very accurately encapsulates the publishing experience from the author's point of view (especially footnote 5).

In addition to being an author, I am also an Articles Editor.  This means that as I am writing this post, I am staring at a pile of articles that is nearly three feet high that sits in the corner of my living room.  It is a collection of all I have read in my time on Law Review, and I hope that by the end of next year it will be as tall as I am.

While I have seen some fantastic criticism of the law review publishing process from the author's side, I think there are a few points worth mentioning from an editor's point of view that authors should keep in mind.

• In the spirit of diligence, I almost always keep reading an article with an open mind after reading the first footnote.  This is a difficult habit to maintain, however, when the author has misspelled the name of the school with which he or she is affiliated.
• It is especially different to take the author seriously when his or her misspelled school happens to be my alma mater.
• I occasionally read articles that engage in statistical analysis.  While there are other articles editors who have a better eye for this than me, authors should try to avoid errors in analysis that even I can spot.  For instance, comparison with control groups should be included in the analysis -- not relegated to future research.
• If the author's paper has been pre-empted, it is best not to submit the paper in the first place.  It is simply too tempting to cite the pre-empting piece since it is so closely related to the current project.  Unfortunately, when the author's thesis paraphrases the title of the cited source, a conscious articles editor will often spot this.
• Authors should not re-post pieces on ExpressO.  It looks too desperate.
• While on the subject of ExpressO, when filling out a submission form, the box "Title" is where the title of the author's paper should go, not the word "Professor."
• The Chief Articles Editor of the UCLA Law Review is female.
• I pay attention to citations.  Any citation to A.P. Herbert's Uncommon Law earns an author some points in my book.  There are so many cases in that book on so many topics that any author writing on any subject should be able to include several footnotes to this source.  Don't worry, the footnote will look legitimate, so authors are not risking anything by including as many of these citations as possible.

Following these simple bits of advice may not guarantee publication, but it is certainly a good checklist to follow in order to avoid shooting yourself in the foot.

The Aaron Hernandez Case and eHearsay

At EvidenceProf Blog, Jeff Bellin posts about the Aaron Hernandez case and the evidentiary concerns with text messages that were sent by the victim.  The victim’s text messages indicate that the victim was with Hernandez shortly before his death.

Bellin notes that the text messages are hearsay and that this can be a big problem for the prosecution since the hearsay exception that would typically apply to these messages (present sense impression) has not been adopted by Massachusetts.  Bellin uses this as a jumping-off point to note his forthcoming article, “eHearsay,” where he discusses the need for revisions to rules of evidence that would allow recorded statements such as posts on Facebook or Twitter to be admitted in the event of the declarant’s unavailability.

I think that Bellin is on to something when he argues for a new, general rule that would permit the admission of recorded statements about recent events in the event of the declarant’s unavailability.  With the rise of Twitter and Facebook, there is going to be a lot of this evidence available, and the admission of this evidence would help paint a more realistic picture of events for the jury.  Additionally, there is less of a danger that the declarant’s statement will be misinterpreted, since it does not need to pass through a human intermediary – the statement itself is recorded and can be admitted as it was written.

On the other hand, using the Hernandez case is a somewhat misleading way of introducing a discussion for the need of an “eHearsay” exception.  The Hernandez case is problematic only because Massachusetts is one of a minority of states that has not adopted the present-sense impression exception to the hearsay rule.  Typically, recorded statements about what one is doing or experiencing will fall under the present-sense impression exception to the hearsay rule, especially since many people are now updating their Facebook and Twitter statuses using smartphones.  These status updates occur either contemporaneously with the events they discuss, or very nearly so.  Because of this, most recorded statements that Bellin wants admitted will probably be admitted under the present-sense impression exception.

Another qualm that I have with an eHearsay exception arises from the problem of hacked accounts.  As I mentioned above, statements that are recorded by the declarant are generally more reliable than a statement that is relayed by a third party.  This reliability is undermined in the Facebook/Twitter context due to the potential for other individuals to take control of an account.  Bellin does not seem to address this concern in his discussion of eHearsay.  While recorded statements on Facebook and Twitter may provide unprecedented insight into the experiences of an unavailable declarant, the possibility of these accounts being hacked creates an unprecedented risk of statements that falsely appear to have been made by the declarant.

The rise of texting and social network posts reveal the age of the hearsay rule and its exceptions.  Despite this, the rules must be revised with caution.  Old metrics of reliability and simultaneity do not adequately account for hacking, and any revision to the rules of evidence must take into account all unprecedented sides of this debate.