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David Badertscher
Legal experts and prosecutors are quite concerned about possible results of the June 25, 2009 U.S. Supreme Court decision Melendez-Diaz v. Massachusetts 07-591. In this decision the Court has ruled that forensic analysts conducting tests must be in court to testify about their test results and that lab sheets that identify a substance as a narcotic, or breath test printouts describing a suspect’s blood-alcohol level are no longer to be considered as sufficient evidence. A person is now required to be in court to talk about the test results. The basic question the Supreme Court addressed in this opinion was: “Is a state forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington?”* In its ruling the Supreme Court answered, yes.
_________________________ *The above quote was taken from discussion of this opinion in the U.S. Supreme Court Oyez website at. http://www.oyez.org/cases/2000-2009/2008/2008_07_591 . This site also includes links to the text of the opinion as well at to the Syllabus, dissent, concurrance, and argument. For additional information see discussion in a July 15, 2009 Washington Post article by Tom Jackman, and follow the link on the U.S. Supreme Court website.

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BY KAT SANDERS*

It’s easier to solve crime today than it was 50 years ago, because of the advances that have been made in the field of science, or to be more specific, forensic science. In fact, new and innovative crime solving techniques are being introduced by the day to help law enforcement officers solve cases that are baffling at first. If we took a long and hard look at the role that forensics play in the fields of criminal law and justice, we would see how important it is in solving crime because:

It helps establish the nature of the crime: There are some crimes that are accidents and others that are by design. Looking at the evidence through a forensic microscope allows cops and others in the law enforcement area to determine if the crime was a murder, suicide or other form of accidental death. In the case of a murder, forensic evidence tells them if the crime was accidental or carried out in cold blood. Forensic science is also used to investigate and solve burglaries, drug offenses, arsons and automobile accidents.

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The Unclassified Report of the President’s Surveillance Program released on July 10, 2009 is a review of the National Security Agency Warrantless Search Program, created during the presidency of George W. Bush some time after September 11, 2001. The unclassified report was prepared by the inspectors general of five government bodies involved in the original program. Among its many observations it raises questions about both whether the extensive secrecy of the original warrantless surveillance program limited its effectiveness and the legal basis of the original program..

The following is an excerpt from the Introduction to the Unclassified Report followed by a link to the entire Report:

From the Introduction:

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Search run on West Thomson Website on July 14, 2009.

NEW PUBLICATIONS:

Crown Court Index, 2009, 29th

NEW This work provides an index of common penalties and formalities in cases tried on indictment…
Release Date: 6/29/2009

Witness Preparation and Examination for DUI Proceedings: Leading Lawyers on Developing Questioning Strategies, Gathering…

NEW This Aspatore product provides the best practices for gathering witness testimony and…
Release Date: 6/25/2009 $100.00

Archbold International Criminal Courts Practice, Procedure and Evidence, 3d

NEW This is a comprehensive, nuts-and-bolts manual to handle matters before the International…
Release Date: 8/1/2009

For more information click here.

RECENTLY UPDATED EDITIONS:

Pennsylvania Rules of Court, State & Federal, 2009 Revised ed.

NEW This set contains Pennsylvania state and federal civil, criminal, appellate procedure,…
Last Updated: 7/24/2009 $97.00

The Georgia DUI Trial Practice Manual, 2009 ed.

NEW Gain strategic advice, trial guidance, and discovery techniques for DUI matters, including a…
Last Updated: 6/12/2009 $173.00

Search and Seizure Checklists, 2009 ed.

NEW Quick-reference guide provides instant access to the latest developments in the field of…
Last Updated: 6/12/2009 $539.00

Daniel’s Georgia Handbook on Criminal Evidence, 2009 ed.

NEW Gives you a practical guide to the law of evidence in Georgia in criminal cases.
Last Updated: 6/19/2009 $245.00 Continue reading

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Ten top stories.

July 10, 2009.

Editor’s Note: Check back at ABAJournal.com starting Monday for live coverage of the Sonia Sotomayor confirmation hearings. The Journal’s U.S. Supreme Court expert Richard Brust will post highlights from the Senate committee Q&A.

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 6-10, 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Meadows, No. 08-1122 Conviction for firearms possession is affirmed where: 1) the district court properly denied defendant’s motion to suppress as the officers acted within the permissible scope of an investigatory stop when they handcuffed defendant and removed him from his sister’s home; 2) the court did not err in its handling of defendant’s status as a felon during trial as defendant was not unfairly prejudiced by any information about his criminal history that came before the jury; 3) the government did not err in the challenged statements it made during its closing summation; and 4) the government did not err in its instructions to the jury.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Bryant , No. 08-1160 Conviction and sentence for drug crimes is affirmed in part and reversed in part where: 1) the district court erred in not requiring the government to show that the presentence report’s description of the prior New York conviction was based on a sufficiently reliable source to establish the accuracy of that description, and thus the government could not have met its burden of establishing the existence of the prior conviction for sentencing enhancement purposes; 2) the court did not err in finding that a certified copy of the record from the Suffolk Superior Court was sufficiently reliable to support the fact of defendant’s Suffolk Superior Court conviction for sentencing enhancement purposes; 3) both of the defendant’s prior convictions, if proven, qualify as a predicate offenses under U.S.S.G. sec. 4B1.2; and 4) the court did not err in considering the two transactions as part of the same course of conduct for purposes of sentencing.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.
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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 6-10. 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 McCullen v. Coakley , No. 08-2310
In an action challenging a statute creating a fixed buffer zone around reproductive health care facilities, district court judgment rejecting the facial challenge and refuseing to enjoin enforcement of the new law is affirmed where: 1) there is nothing in the text or the legislative history of the statute that deprives that statute of content-neutral status, and thus an intermediate scrutiny analysis applies; 2) the statute is a valid time-place-manner regulation that advances a significant governmental interest without burdening substantially more speech than necessary and leaves open adequate alternative channels of communication; 3) plaintiffs’ overbreadth argument is without merit as the increased degree of the expansion of the buffer zone in the statute is reasonable, and thus the expansion is not a matter of constitutional significance; and 4) plaintiffs’ vagueness argument fails as plaintiffs want to engage in the anti-abortion protests that are proscribed in the atto! rney general’s challenged guidance letter, and a party to whose conduct a statute clearly applies may not successfully challenge it for vagueness.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.

U.S. 5th Circuit Court of Appeals, July 10, 2009 Little v. KPMG LLP, No. 08-50100 In an action claiming that Plaintiff accounting firms lost business to Defendant when Defendant’s partner practiced without a Texas accounting license, the dismissal of the action is affirmed, where the alleged injury to Plaintiff was too speculative Continue reading

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 8-13, 2009
ADMIRALTY, CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, DEBT COLLECTION Transfield ER Cape Ltd. v. Industrial Carriers Inc., No. 09-1733 In a dispute involving a maritime attachment and garnishment against a corporate alter ego, district court order vacating the attachment is affirmed where, if a corporation is registered with the New York Department of State and therefore found within the district for the purposes of Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions, that corporation’s alter egos are also found within the district and the property of those alter egos is not subject to maritime attachment.

CIVIL RIGHTS, LABOR & EMPLOYMENT LAW Harris v. Mills, No. 07-2283 In an employment discrimination action brought under the Americans with Disabilities Act and the Rehabilitation act, district court judgment granting the defendants’ motion to dismiss the plaintiff’s pro se amended complaint is affirmed where: 1) the district court erred in concluding that claims under Title II of the ADA and the Rehabilitation Act cannot be asserted against individuals in their official capacity; 2) plaintiff’s amended complaint fails to state reasonable accommodation claims upon which relief can be granted, as both of his claims are legally insufficient; and 3) plaintiff’s due process rights were not violated, as he was given notice and an opportunity to be heard before his petition for reinstatement was denied, and a New York Civil Practice Law and Rules Article 78 post-deprivation hearing.

ERISA, LABOR & EMPLOYMENT LAW, PER CURIAM Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, No. 08-1611 In a dispute involving disability insurance benefits, district court judgment dismissing plaintiff’s ERISA claim is affirmed where the court was correct to enforce the limitations period of the benefits plan in its entirety, including its prescribed start date, and to dismiss plaintiff’s claim as time-barred as it was brought after the expiration of the limitations period
CRIMINAL LAW & PROCEDURE, SENTENCING US v. Daye, No. 08-1012 Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant’s prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant’s escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act.
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Update from the Lexis Alert Service,

July 2009.

1. People v. Lasalle, 1006, 3722/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5603; 2009 N.Y. App. Div. LEXIS 5422, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

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On june 15, 2009 we received an interesting question by e-mail regarding law school journals and open access. Somewhat later we received another e-mail from the same person, summarizing the responses to her original query. Due to increasing interest and concern regarding information access issues, including open access to law journals we are posting both the original question and responses below. In order to preserve confidentiality we will not be mentioning names but are very grateful to the legal bibliographer who raised the original question and summarized the responses:

QUESTION:

Do any of your law school journals publish their open access contents through a repository (like DSpace, BePress, etc..), or use a system like OJS-Open Journal Systems (PKP) to publish online? Do they simply post their issues/articles as pdf’s to the law school server?

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