I know a lot of lawyers who don’t like what they do. I’m not one of those. I find the law endlessly fascinating, and I’m always noticing new issues and problems. Some of those turn into blog postings here or at libraryofdefense.ocdla.org, or tweets. Some of them are just waiting for the right case.
You can see posts for selected categories by clicking on an item in this list, or scroll down to see my most recent posts.
- Appeals
- Collateral Consequences
- Criminal Law
- DUII
- Forensic Science
- Miranda
- Non-English Speakers
- Search & Seizure
- Sex offenses
- Trials
No, the police probably can’t make you unlock your phone with your fingerprints.
Judge Steven C. Frucci in Virginia Beach recently decided that a criminal defendant could be forced to unlock his phone using his fingerprints . Reporting of the decision has suggested that the police can make you unlock your phone whenever they feel like it. They can’t, and that wasn’t what the Virginia Beach decision was about. The United States Supreme Court has already decided that police cannot search your cell phone without a warrant or an exception to the warrant requirement. That decision, Riley v. California , applied the Fourth...
read moreWill Apple’s security measures become standard?
With Apple’s new mobile operating system scheduled for release on Monday, it will be harder for the authorities to snoop around in confidential information on Apple devices. I’m thrilled. That’s partly because I’m an Apple user and I have all sorts of information that I am ethically required to keep secret. But mostly it’s because the government has become much too willing to snoop, and I want that to stop. The right against unreasonable searches and seizures is protected by the Fourth Amendment to the United States Constitution and...
read morePunishing Janay Rice
In February, then-NFL running back Ray Rice assaulted his then-fiancée Janay Palmer. His conduct was inexcusable, and the response by law enforcement and the NFL was tepid. Mr. Rice was initially suspended for two games, and, although he was prosecuted, he escaped serious punishment by entering a diversion program. More information has slowly come to light, and public opinion has turned against Mr. Rice and the NFL’s response. Domestic violence is a hard crime to address. The victim is often uncooperative. It is very hard to tell the...
read moreDiversion eligibility and assault
The diversion statutes, ORS 813.200 , et seq permit a person charged with their first DUII to avoid conviction by agreeing to complete treatment and comply with various requirements. For a person eligible for diversion, it’s usually a good idea, because even a strong defense at trial is not ironclad, and the certainty of escaping conviction usually makes it worth the hassle of completing the diversion program. Diversion is not available to a person convicted of vehicular assault within the last fifteen years, which is a reasonable enough...
read moreReview of Typography for Lawyers by Matthew Butterick
My job title is ‘lawyer,’ but the majority of my work is writing. When lawyers show up in TV or movies, the focus is usually on trials. Trials make for good drama, and, because they’re theatrical and visual, they make for a good show. Part of being a good trial attorney certainly involves good public speaking and improvisation. But even trials involve a lot of written motions, and appeals and post-conviction actions are mostly conducted in writing. An appeal often has a short oral argument before a panel of judges, but the really...
read moreOregon’s bail requirements violate the constitutional right to bail
Historically, bail referred to a deposit of money or property with the court to ensure attendance at a future court date. That’s it. It included a promise to appear in court, but no other promises, and did not permit seizure of bail other than for failure to appear, so bail could not be applied to fines, costs, violation of a release agreement or unrelated judgments. Modern bail includes various other requirements, and those requirements may violate Oregon constitutional guarantees. Article I, section 14, of the Oregon Constitution,...
read moreShould rapists have parental rights?
I just saw this article from the Courthouse News Service about the ugly fallout of the rape, and resulting pregnancy, of a 14-year-old girl. The 20-year-old rapist has been convicted and placed on probation for 16 years. He has also been ordered to admit paternity and to initiate proceedings in family court, apparently to set child support and maybe even visitation. The victim brought suit, asking the Massachusetts courts not to force her to participate in legal proceedings involving her rapist. It is deeply troubling to order a 14-year-old...
read moreWe will never know what George Zimmerman did
In light of the not-verdict, there are a lot of opinions floating around about George Zimmerman. I haven’t got one; I don’t know what happened that night, and neither do you. I felt more sympathy for Trevon Martin than for Mr. Zimmerman; the latter came across as a disappointed, wannabe police officer, and I’ve had a lot of clients who bore a close resemblance to Mr. Martin. But Mr. Zimmerman is not guilty because I, as a half-hearted observer of the case, found him unsympathetic. The only person who really knows what happened was Mr....
read moreWould you rather trust Edward Snowden or the NSA?
As you know, unless you’re living under a rock, Edward Snowden is a former National Security Agency contractor who released records relating to the NSA’s PRISM project. Although PRISM’s scope remains obscure, it appears that the NSA has been mining all sorts of data from big tech and communications companies. That data surely includes so-called ‘metadata,’ which is information about phone calls and e-mail messages, such as the sender and recipient. Response to Mr. Snowden’s revelations has been mixed; the data sought is not...
read moreAmanda Knox haters, juries, and altruistic punishment
As part of my (aspirationally) regular routine of reading appellate court rulings, law-review articles, and the like, I also look for resources on non-legal topics that bear on my practice, such as rhetoric, psychology, decision theory, and group dynamics. The ongoing kerfuffle about Amanda Knox’s prosecution has led me to a non-legal tidbit that trial lawyers should know about: an anthropological concept called ‘altruistic punishment.’ Altruistic punishment is a visceral desire to see a perceived wrongdoer punished, even if the punisher...
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