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Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what constitutes a reasonable search and seizure. For example, in United States v. Falso, the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate.
Likewise, in United States v. Hodson, the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search warrant for child pornography. The court reasoned that when “probable cause [is established] for one crime (child molestation) but [the warrant is] designed . . . for evidence of an entirely different crime (child pornography)” the warrant lacks probable cause. Therefore, because there was no relation between the two crimes and no reasonable inference could be made to link the two for sufficient probable cause, the court held the search warrant to be defective.
The extraterritorial reach of the Federal Rules of Civil Procedure’s (Federal Rules) evidence-gathering provisions has long been a source of tension in foreign relations. The world we live in is increasingly interconnected and litigation between parties subject to multiple sovereigns has become more commonplace. Often, the discovery provisions of the Federal Rules come into conflict with foreign laws, such as banking secrecy or blocking statutes. Under such a predicament, a litigant that operates both abroad and in the United States is placed in a catch-22: produce discovery in violation of foreign law (and be subject to liability) or refuse to produce discovery (and be subject to sanctions). These types of scenarios can arise in almost every context and implicate the laws of many of nations. For example, consider the Securities and Exchange Commission’s (SEC) recent conflict with Deloitte’s branch in China regarding the production of documents. The SEC sought documents related to Deloitte’s audit of Longtop Financial Technologies, but Deloitte claimed it was barred from doing so by Chinese secrecy laws.
Courts have attempted to resolve these conflicts in a variety of ways. The United States Supreme Court has even offered guidance. Federal courts, however, continue to apply an inconsistent standard that balances various interests. Thus, it is common for courts to decide cases in this area in conflicting fashion. The conflicting decisions, however, run further than a typical circuit split. The United States District Court for the Southern District of New York recently decided virtually identical cases involving the discovery obligations of Chinese banks differently. Neither judge was wrong in either of those cases; rather, the legal standard itself provides the judiciary with almost unlimited discretion to make subjective policy judgments.
For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. The reality is that prisoners throughout the United States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex-reassignment surgery (SRS), has been plagued by the courts’ general resistance to recognize the severity of gender dysphoria. The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. The Supreme Court has further explained that the Eighth Amendment’s protections must conform to shifting and maturing notions of decency and social justice.
Gender Identity Disorder (GID) has been recognized as a mental illness; individuals currently incarcerated and suffering from GID—or gender dysphoria as it has been recently renamed—assert that SRS is a “medically necessary” treatment for this condition under the Eighth Amendment. In 2012, the United States District Court for the District of Massachusetts became the first American court to grant an injunction mandating a prison to provide SRS to a transsexual prisoner in the case of Kosilek v. Spencer (Kosilek II). Michelle Kosilek, a male-to-female transsexual currently serving a life sentence for the murder of her wife, sought to have the Massachusetts Department of Corrections (DOC) provide her with the controversial procedure. The DOC doctors determined that the only adequate treatment for Kosilek’s condition was to undergo the procedure but nonetheless denied treatment out of the purported rising fears for prison security. Holding that the security concerns were merely a pretext for denying treatment, the court found that prison officials were deliberately indifferent to Kosilek’s serious medical needs and ordered the treatment.
New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena.
The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.
When the United States Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977, its chief concern was deterring off-the-books bribes of foreign officials by domestic corporations. The FCPA authorized the Securities and Exchange Commission (SEC) to issue new rules, including Rule 13b2-2, which imposes civil liability on corporate officers who mislead accountants concerning the corporation’s finances. In SEC v. Das, the Eighth Circuit Court of Appeals addressed the issue of whether civil liability is present in cases where the corporate officer did not knowingly mislead. Splitting from the Ninth Circuit—the only other circuit court that addressed this issue directly—the Eighth Circuit rejected the proposed “knowingly” requirement, holding that a reasonableness standard shall apply in such cases.
Das concerned infoUSA, Inc., a publicly traded, Nebraska-based corporation that sold databases to businesses and consumers. More specifically, the case concerned events involving three corporate officers: Vinod Gupta, who served as chief executive officer and chairman until 2008; Rajnish Das, chief financial officer from 2003 to 2006; and Stormy Dean, chief financial officer from 2000 to 2003 and then again from 2006 to 2008. The SEC claimed, in a 2010 civil enforcement action, that Dean violated provisions of the Securities Exchange Act of 1934. The agency claimed, among other things, that both former chief financial officers, Das and Dean, deceived auditors concerning payments infoUSA had made to Aspen Leasing Services LLC and Annapurna Corporation—two companies owned by Gupta—to pay for Gupta’s homes, yacht, and cars. The SEC’s complaint further alleged that Dean and Das had signed the company’s management letters to external auditors, falsely representing that all related-party transactions had been properly disclosed. At trial, the judge instructed the jury to find that Dean violated the law if he did not act “reasonably” regarding the false statements made to auditors.
The U.S. tax code allows citizens and domestic corporations to credit foreign taxes paid against U.S. taxes owed. A foreign tax paid by a U.S. citizen or a domestic corporation may be creditable against domestic taxes when such tax is considered a levy on income. Although the tax’s “predominant character” controls in determining whether it is an income tax, the effect of a foreign country’s characterization of the tax on such analysis has remained unsettled. In PPL Corp. v. Commissioner, the Supreme Court considered whether a windfall tax paid in the United Kingdom (U.K.), and characterized by the U.K. as a tax on value and not a tax on income, is creditable in the United States. The Court held that the tax formula adopted by the U.K. Labour Party was an income tax in the United States for credit purposes because the economic reality of the levy was a tax on the company’s income.
A Conservative Party-controlled British Parliament privatized certain government-owned companies in the 1980s and 1990s through an initial sale to the public known as a “flotation.” Petitioner PPL Corporation (PPL) was a U.S. company that owned twenty-five percent of one of the privatized companies, South Western Electricity plc (SWE). For the four years after privatization, the British government required certain companies, including SWE, to charge customers the same rates they had charged under the government’s control. The companies became much more efficient during this period and earned large profits.
In Verizon v. FCC,1 the United States Court of Appeals for the District of Columbia, for the second time in four years, reviewed the Federal Communications Commission’s (FCC) authority to impose “net neutrality” rules on broadband service providers’ network management practices.2 In 2005, the FCC issued a policy statement outlining the principles of Internet neutrality applicable to all Internet service providers operating in the United States in an effort to make broadband networks “widely deployed, open, affordable, and accessible to all consumers.”3 After the policy was adopted, the FCC discovered that Comcast Corporation was limiting bandwidth to peer-to-peer sharing websites in contravention of the Internet-neutrality principles. In response, the FCC issued an order requiring Comcast to disclose sufficient details of its network management practices and to create a compliance plan to end the unreasonable practices.4 Following the issuance of the order, Comcast petitioned for judicial review of the FCC’s authority to regulate their broadband network management practices.5 The D.C. Circuit agreed with Comcast, holding that the FCC only had the authority to compel open network practices on common carriers, which broadband providers did not qualify as.6 Shortly after the D.C. Circuit’s 2010 ruling in Comcast, the FCC adopted the Open Internet Order which imposed Internet-neutrality rules of disclosure, antiblocking, and antidiscrimination on broadband providers.7 Verizon then petitioned for judicial review of the FCC’s authority to adopt the Open Internet Order.8
The FCC was established by Congress under the Communications Act of 1934 (Act of 1934) to regulate interstate and international communications transmitted by radio, television, wire, satellite, and cable.9 One of the FCC’s major enforcement provisions under the Act of 1934 mandated that common carriers provide their communications services to the general public on a nondiscriminatory basis.10 Under the Act of 1934, all telecommunications carriers were classified as “common carriers,” with telecommunications defined as the “transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”11 The FCC continues to classify these purely transmission-based services as “telecommunications services.”12
The FCC’s regulatory authority was subsequently overhauled by the Telecommunications Act of 1996 (Act of 1996).13 The Act of 1996, among other things, expanded the jurisdiction of the FCC to intrastate telecommunications and also reinforced the nondiscrimination principles for telecommunications providers. The FCC was also given the power to regulate “information services,” defined as the “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”14 Notably, information services providers were not classified as common carriers and were thus not subject to the same antidiscrimination laws as telecommunications service providers.15 In 2002, the FCC issued a declaratory ruling that classified cable modem service as an “interstate information service” causing those services to fall within its jurisdiction; however, the ruling stated that cable modem services do not contain a separate telecommunications service offering and as a result are not subject to common-carrier regulation.16 Subsequently, many companies petitioned for judicial review of this declaratory ruling. The United States Court of Appeals for the Ninth Circuit held that while cable modem services can be classified as information services, the FCC could not reasonably construe the Act of 1996 as exempting cable modem service carriers from the common-carrier regulations.17 The FCC, in response, petitioned for certiorari to the United States Supreme Court. The Court granted certiorari and overturned the Ninth Circuit’s ruling, holding that the FCC’s conclusion that broadband cable modem companies are exempt from mandatory common-carrier regulation was a lawful construction of the Act of 1996.18
Due to the Brand X ruling, all cable broadband providers in the United States are classified as information services and are not subject to the common-carrier regulations, while dial-up Internet providers are subject to such regulations. Despite the early absence of regulation of information services, the FCC signaled its intention to regulate these services when it issued a policy statement in 2005 containing four principles of Internet neutrality, which aimed at preserving and promoting the open and interconnected nature of the Internet.19 This policy was eventually struck down by the D.C. Circuit when the court determined that the FCC lacked jurisdiction to impose common-carrier regulations on broadband providers.20 The FCC argued that the Act of 1934 gave the Commission ancillary power to impose common-carrier regulation on broadband providers; however, this argument was defeated.21 In response to the Brand X and Comcast rulings—along with the latent ambiguity surrounding the FCC’s ability to regulate information service providers—there have been many proposed bills in Congress attempting to resolve the status quo, most imposing the common-carrier regulation of antidiscrimination on broadband providers.22
In Verizon v. FCC, the D.C. Circuit was aware of the potential ramifications of its holding and began by reviewing whether the FCC had statutory authority to regulate broadband providers pursuant to section 706(a) and (b) of the Act of 1996, which requires the FCC to promote competition in the local telecommunications market.23 The court held that the FCC had statutory authority, in accordance with the FCC’s revised interpretation of section 706. The court then proceeded to review whether the Internet-neutrality rules adopted in the Open Internet Order exceeded the FCC’s scope of authority.24 The court concluded that because the FCC had classified broadband providers as information services without a telecommunications element, and because the Open Internet Order rules relative to antidiscrimination and antiblocking amounted to per se common-carrier regulations, those rules could not be imposed on broadband providers who were otherwise exempt from such regulation.25 The FCC argued that the Open Internet Order rules did not impose common-carrier regulations on broadband providers and that they were not “carriers” as defined in the Act of 1996. Nevertheless, the court found these arguments unpersuasive, reasoning that although broadband providers were not carriers, they were obligated to act like common carriers as a practical result of the Open Internet Order rules.26 All three Judges of the D.C. Circuit in Verizon agreed that the Open Internet Order rules impermissibly imposed antidiscriminatory and antiblocking regulations on broadband providers; however, Judge Silberman, dissenting in part, argued that section 706 of the Act of 1996 did not grant the FCC affirmative authority to promulgate these Internet-neutrality rules.27
Because broadband providers are not subject to antidiscriminatory and antiblocking rules as a result of Verizon, these providers are able to favor certain websites and web services over others.28 This ability to freely discriminate amplifies the impact of web-service and broadband-provider agreements, such as the recent agreement between Netflix and Comcast.29 Though on its face this transaction eliminates the intermediary backbone provider, allowing Comcast to manage the dissemination of data between Netflix and end-users directly, it also permits Comcast to both offer a fast broadband package to web services that can afford it and to slow down, or throttle, data speeds for web services unwilling or unable to pay them for faster speeds.30 This practice will serve not only to stifle competition in the broadband market—as newer companies may not be able to afford a broadband provider’s prices—but will also impose costs on the end-user who will either have to pay more or be forced to use a web service that has its data speeds throttled.31 In addition, Verizon also impacts the looming Comcast and Time Warner merger, in which the resulting organization would be providing broadband to nearly one-third of the country.32 Without any antidiscriminatory or antiblocking rules in effect, a broadband provider covering that much of the country would be in an advantageous bargaining position in the event it decides to implement discrimination and blocking practices against web services; and the web service might only be left with the choice to pay what the broadband provider is asking or risk going out of business.
The D.C. Circuit’s conclusion in Verizon was practical and well-rooted in the law when it struck down the FCC’s Internet-neutrality rules for broadband providers because the FCC’s own classification system with respect to information service providers exempted them from such regulations.33Moreover, the FCC’s classification between telecommunication services and information services was upheld by the Supreme Court, and prior attempts to apply common-carrier regulations upon broadband providers have similarly been struck down by the courts.34 Nevertheless, the Court’s decision leaves the future of net neutrality and a free and open Internet uncertain. Congressional action is now the only solution to this problem. Congress must legislate in the area of Internet neutrality or reclassify broadband providers as common carriers. Although previous congressional attempts aimed at achieving this result have been defeated, the looming megamerger of Comcast and Time Warner, as well as the web-service and broadband-provider agreements between key providers such as Comcast and Netflix should have an impact. Indeed, it is clear that the ramifications of not having Internet-neutrality laws are now becoming more apparent to Congress than ever before.
R. Brice Turner, Case Note, D.C. Circuit in Verizon Strikes FCC’s “Net Neutrality” Rules for Broadband Providers, 2 Suffolk U. L. Rev. Online 46 (May 22, 2014), http://suffolklawreview.org/turner-verzion.
The right for a person to be free in his or her body, effects, and property from governmental intrusion serves as the bedrock of the Bill of Rights, as well as the Commonwealth of Massachusetts’s Declaration of Rights.1 As technological advances, such as the creation of smartphones, increasingly allow for the monitoring and tracking of a device owner’s whereabouts, courts are left to reconcile whether and to what extent that information can be used in criminal proceedings.2 In Commonwealth v. Augustine,3 the Supreme Judicial Court of Massachusetts was tasked with deciding whether police may obtain historical cell site location information (CSLI)—which uses signals sent from cell phones to signal towers in order to track a device’s location—from a potential suspect’s cell phone service provider without a warrant.4 The Court held that under the Massachusetts Declaration of Rights, police must obtain search warrants supported by probable cause because defendants are owed a reasonable expectation of privacy in that information.5
Julaine Jules’s body was found in the Charles River on September 19, 2004, nearly one month after she went missing.6 Shortly after its discovery, police began investigating the possible involvement of her former boyfriend, Shabazz Augustine, in her murder.7 In order to “possibly include or exclude” Augustine “as a suspect,” police requested CSLI from his cellular service provider, Sprint Spectrum (Sprint), for a two-week period beginning on the last day Jules was seen alive; police requested this information by means of a court order under § 2703(d) of the Stored Communications Act (SCA),8 but not pursuant to a warrant.9 A Superior Court judge granted an order to Sprint under § 2703(d) of the SCA, and Sprint released sixty-four pages of CSLI records to the Commonwealth.10 Nearly seven years later, Augustine was indicted by a grand jury for the murder of Jules.11
Augustine moved to suppress this CLSI evidence on the grounds that it violated both his Fourth Amendment and Article Fourteen rights to be free from warrantless searches.12 The Superior Court judge agreed that Augustine’s rights under Article Fourteen were violated and ruled that the CSLI information must be suppressed.13 The Commonwealth sought interlocutory review, which a single justice allowed and ordered that the case be heard before the Supreme Judicial Court.14
Under both the Fourth Amendment and Article Fourteen, the government may not search or seize a person, his house, or his effects without a search warrant that is supported by probable cause, with limited exceptions.15 In order to determine whether a search in the constitutional sense has occurred, courts first assess whether the person being searched had a subjective expectation of privacy and then evaluate whether that expectation of privacy is reasonable.16 If both prongs are satisfied but the government did not obtain a warrant for the search (and no exceptions apply), then the search is illegal and the evidence obtained is excluded.17 While courts emphasize that individuals have a manifest reasonable expectation of privacy from the government within the sanctity of their own home, they have likewise held that an expectation of privacy in effects, such as bank statements, transmitted to third parties is not reasonable.18 As technological advances allow individuals to more easily engage in behavior that was typically reserved for protected areas, courts are forced to evaluate whether that information should remain protected now that law enforcement could otherwise obtain it through first-hand observation.19
The SCA was initially created to protect the information transmitted by electronic communications by limiting the circumstances in which service providers could disclose it.20 The SCA allows the government to obtain this information either pursuant to a warrant, which requires a showing of probable cause, or pursuant to a § 2703(d) order, which requires only a showing of reasonable suspicion—a much lower standard.21 While courts remain divided on the issue, many federal courts have held that the lesser “reasonable suspicion” standard mandated by the § 2703(d) order is sufficient to obtain historical CSLI, even though CSLI may reveal information about people while they are at home or engaging in other constitutionally protected conduct.22
While states are required to enforce (and may not abridge) the protections under the Fourth Amendment under the provisions of the Fourteenth Amendment, they are empowered to enlarge those rights23 Accordingly, some states have held that the § 2703(d) process constitutes an illegal search under state constitutions, even though it may comply with the Fourth Amendment.24 Particularly in regard to electronic communications, the Massachusetts Supreme Judicial Court has diverged from the Supreme Court in analyzing searches and seizures under Article Fourteen and afforded Massachusetts residents greater protections than those found under the Fourth Amendment.25
In Commonwealth v. Augustine, the Supreme Judicial Court declined to analyze the release of Augustine’s CSLI records pursuant to the § 2703(d) order under the Fourth Amendment, thus limiting its holding to Article Fourteen of the Massachusetts Declaration of Rights.26 The Court first evaluated whether Augustine’s voluntary use of his cellular telephone, and his knowledge that cellular service providers maintain information about the telephone’s whereabouts, diminishes his expectation of privacy. The Court held that it did not, because of the “indispensable” role cellular telephones play in modern society and the lack of choice people have in cellular service providers transmitting this information.27 The Court next compared CSLI data to GPS tracking and emphasized the likelihood that those records would reveal information about Augustine’s location in constitutionally protected places.28 The Court concluded that Augustine’s expectations of privacy were reasonable, and thus, a search had occurred when the government sought to obtain Augustine’s CSLI. Therefore, police should have obtained a search warrant supported by probable cause.29 Accordingly, the less stringent “specific and articulable facts” standard used in Officer McCauley’s § 2703(d) application was invalid, rendering the search unreasonable.30
Justice Gants, with whom Justice Cordy joined, dissented.31 While they would recognize that certain types of CSLI—namely, registration information—ought to be protected under Article Fourteen, they believed that the more general information of historical CSLI (which only tracks the cell site location when the telephone makes or receives calls) reveals no information that Augustine could reasonably expect to be kept private.32 The dissent reasoned that cellular telephone users would need to make calls constantly in order for the telephone call CSLI to amount to GPS tracking.33 Further, because this type of information is stored only when calls are made or received, the dissent disagreed with the majority’s contention that the information conveyed to the third-party service provider was involuntary.34 Justice Gants would accordingly deny the motion to suppress the CSLI records, which only sought to know the location of the cellular device when it made or received calls for a two-week period.35
The dissent underscores an important question on the distinction between types of CSLI not squarely addressed by the majority opinion: do all types of CSLI deserve the same constitutional treatment?36 Registration CSLI tracks the precise locations of cellular devices every seven seconds, allowing law enforcement officers to reconstruct detailed maps showing where, when, and for how long individuals were at certain locations.37 All justices on the Supreme Judicial Court agree, as do many other jurisdictions, that law enforcement officers should obtain search warrants in order for this type of data to be released.38 However, the type of CSLI at issue in this case—historical CSLI—tracks only the locations of cell sites used in the event calls were made or received.39 This practical difference bears some significance on the court’s third-party analysis, as well as the parallels it draws to GPS tracking.40
The court’s conclusion that Augustine’s transmission of information by his cellular telephone to his service provider violates his reasonable expectation of privacy marks a departure from how many courts have addressed the issue.41 Its departure results from distinguishing the applicability of certain Fourth Amendment precedent.42 Other courts have specifically relied on the Supreme Court case of Smith v. Maryland for the proposition that an individual’s expectation of privacy in the telephone numbers he calls is unreasonable;43 instead, the majority in Augustine emphasized that cellular telephone users do not expect that the telephone numbers they dial remain private, but rather the area in which those calls are made should remain private, now that telephones are portable (noting especially that Smith was penned prior to the development of portable telephones).44 In this regard, location information is not voluntarily given simply because cellular telephones exhibit the feature of portability, since users take no affirmative actions to disclose it.45
Though not directly linked back to its introduction on how cellular telephone technology has evolved, the trend of cellular service providers consistently constructing new cell sites supports the majority’s reasoning that even historical CSLI may eventually operate like GPS tracking, if not more precisely.46 In this regard, the opinion seeks to address future likely events as well as analyzing the facts of the underlying case.47 While historical CSLI is contingent upon calls being made to or from the cellular device, the reality that this information will be transmitted while the device is in constitutionally protected areas cannot be ignored.48 As such, data provided by even historical CSLI may be more invasive than what law enforcement could learn through first-hand observation or GPS tracking.49 Furthermore, the use of GPS tracking provides location information for future movements, but historical CSLI would allow police to recreate an individual’s past movements—“a category of information that never would be available through the use of traditional law enforcement tools of investigation.”50
In Commonwealth v. Augustine, the Supreme Judicial Court ruled, consistent with its Article Fourteen jurisprudence, that in order for police to obtain CSLI from a particular cellular telephone they must first obtain a search warrant. While this holding declines to interpret § 2703(d) applications under Fourth Amendment analysis, it may play an important role in shaping state constitutional analysis in other jurisdictions. Further, the decision may serve as guidance to the Supreme Court in the event that the apparent split between federal courts on the reasonableness of privacy expectations in CSLI is granted certiorari. Because privacy expectations remain a reflection of what society as a whole is willing to accept as reasonable, every individual decision protecting the privacy of CSLI will help demonstrate to the Supreme Court that the government should obtain warrants before infringing upon it.
Kathryn Acello, Case Note, SJC Requires Search Warrants To Obtain Defendants’ Cellular Site Location Information in Augustine, 2 Suffolk U. L. Rev. Online 37 (May 19, 2014), http://www.suffolklawreview.org/acello-augustine.
This distinction between privacy interests in public and private spaces makes CSLI especially problematic, because cellular telephones give off signals from within both spaces, and when the government seeks to obtain CSLI from a cellular service provider, it has no way of knowing in advance whether the CSLI will have originated from a private or public location.
Id. at 864. ↩
Police officer testimony during OUI (operating a motor vehicle while under the influence of alcohol) trials in Massachusetts often reads like a script from an all too familiar play, with indicators of alcohol intoxication largely the same across police reports and police officer testimony. Police reports are almost certain to include phrases such as, “odor of alcohol on the [driver’s] breath” and “eyes were bloodshot.”1 Indeed, these are common—albeit accurate—indicators of alcohol consumption and intoxication. There are also many other indicators, which are generally important factors in a police officer’s determination of whether he or she has probable cause to arrest a suspected OUI offender.2 When any of these common indicators of intoxication are observed by a police officer, it is a safe bet that it will be listed in the police report. Likewise, when an officer writes something in his or her police report, they almost certainly will testify to it at trial as if it were a fact and not merely one of their observations. This is a common practice, as police officers arrest countless citizens during the course of their duties and there is no prohibition against testifying to alleged facts recorded in a police report.
It is also recognized in Massachusetts that police officers may offer their opinion, as lay witnesses, regarding a defendant’s level of intoxication and may even offer their opinion that a defendant was indeed “drunk.”3 However, the Massachusetts Supreme Judicial Court (SJC) recently decided in Commonwealth v. Canty that a police officer testifying in an OUI trial “may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication.”4 This Case Note will examine the SJC’s decision in Canty, briefly outlining the legal theories relied upon by the court in making its decision, and focusing on the court’s analysis. Moreover, this Case Note will also discuss the implications of the SJC’s decision on OUI trials going forward, emphasizing the suggested proper lines of questioning posed to police officers by prosecutors, the proper instructions to police officers by prosecutors before trial, and various strategies and approaches defense attorneys should take in light of the Canty decision.
II. Police Officer Testimony In OUI Trials
A police officer rarely qualifies, except in limited circumstances that specifically pertain to knowledge gained through specialized police work, as “a witness qualified as an expert by knowledge, skill, experience, training, or education.”5 Therefore, police officers are usually deemed lay witnesses, which limits their opinion testimony to observations that are: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”6
As lay witnesses at OUI trials, police officers are permitted to offer their lay opinion regarding a person’s level of intoxication, but while their training and experience teaches them to look for specific signs of drunkenness, intoxication, or inebriety, their opinion that a person is intoxicated remains that of a lay person, just as any other person may offer such testimony.7 Police officers receive training on what to look for in order to determine a person’s level of intoxication and gain experience in making such determinations and testifying on what factors lead them to make those determinations while performing their duties. Nevertheless, their training, knowledge, and experience does not reach the level of an expert with regard to the level of intoxication or the effects of alcohol on a person.8
On the other hand, an expert qualified “by knowledge, skill, experience, training, or education” regarding the effects of alcohol on human beings may testify on that subject, if such “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence.”9 In order for a qualified expert to do so, however, the expert’s testimony must be “based upon sufficient facts or data, . . . [be] the product of reliable principles and methods, and . . . the witness [must apply] the principles and methods reliably to the facts of the case.”10 This permits experts to offer a greater degree of opinion testimony than that of lay witnesses, as expert witnesses are permitted to rely upon and explain in greater detail what facts, data, principles, and methods helped them arrive at their ultimate conclusion. Regardless, expert witnesses still may not offer their opinion as to the ultimate issue in any case, such as a specific element of an offense at trial, because the purpose of expert testimony is only to assist the factfinder in determining a fact at issue.11
As long as witnesses do not directly testify that they believe a defendant is guilty or innocent in a criminal case, there is no explicit rule in Massachusetts that prevents them from offering an opinion on the ultimate issue in a case. What courts must do in such circumstances is weigh the probative value of such opinion testimony against the threat of unfair prejudice to the defendant, in order to determine whether the testimony was improper.12 In OUI trials specifically, allowing police officers to testify as to their opinion on what effect a defendant’s consumption of alcohol had on a particular defendant’s ability to operate a motor vehicle safely, presents a significant danger of prejudicing a jury against the defendant because juries may view the opinion as that of an expert, although a police-officer witness, in such circumstances, is not qualified to give such an opinion.13 Allowing this testimony at OUI trials comes dangerously close to the ultimate issue of guilt, and because juries tend to view police officers as experts on determining a defendant’s ability to drive after consuming alcohol, the admission of this evidence diminishes the jury’s role in the fact-finding process.14 Therefore, police officers at OUI trials may—as lay witnesses—offer their opinion regarding whether the defendant was intoxicated; however, in order to do so, they must offer testimony about the observations they made of the defendant that helped them reach their conclusion.15
III. Commonwealth v. Canty
There is no explicit rule in Massachusetts that prevents witnesses from offering opinion testimony regarding the ultimate issue of guilt or innocence in a criminal case. Prior to the SJC’s decision in Canty, as long as testimony did not directly concern the defendant’s guilt, nothing prevented police officer’s from improperly offering opinion testimony regarding the ultimate issue of impairment during OUI trials. Accordingly, the police officer in Canty was allowed to testify that “[he] believed that [the defendant’s] ability to drive was diminished,” and that he believed this was due to “alcohol consumption.”16 Another officer testified that “[b]ased on what I observed, yeah, in my opinion [the defendant] was probably impaired.”17 After the jury returned a guilty verdict on the OUI charge and the judge denied the defendant’s motion to vacate his conviction on an indictment that was not before the jury, the SJC granted the defendant’s application for direct appellate review.18
The significant issue on appeal in Canty was whether a police officer may “offer testimony that, in his opinion, the defendant’s ability to drive was diminished by the consumption of alcohol, or that the defendant was probably impaired by alcohol?”19 The court noted that they were required to balance the tension between two well-established evidentiary principles that are specific to OUI trials: the admissibility of lay witness opinion testimony regarding whether a person was intoxicated from the consumption of alcohol and the long-recognized Massachusetts common-law principle that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence.”20 Indeed, the defendant’s contention that police officer’s testified to his guilt is sensible because having been charged with an OUI, a police officer testified that “[Canty’s] ability to drive was diminished by the consumption of alcohol and that he was ‘probably impaired.”21 Although the SJC had previously stated in Commonwealth v. Jones22 that opinion testimony as to the ultimate question of whether an OUI defendant was operating under the influence of alcohol is inadmissible, testimony regarding the defendant’s intoxication remains admissible. The court declined to provide further explanation, which left the door open for prosecutors to elicit—and for police officers to offer—opinion testimony on whether a defendant’s ability to drive was impaired from alcohol.23 In Canty, The SJC was presented with the opportunity to explain its reasoning in Jones and to create a concrete rule for police officer opinion testimony regarding a defendant’s impaired ability to drive as a result of alcohol consumption.
The SJC began its discussion by noting that “an opinion regarding a defendant’s sobriety is a lay opinion, not an expert opinion.” The court continued, stating that “the reasons for admitting a lay opinion are wholly different from the reasons for admitting an expert opinion,” as “the principal objective symptoms” of intoxication are well known to the average person, which gives such opinion testimony probative value.24 The court explained that because there are many subtle observations that any percipient witness can use to form an opinion as to a person’s level of intoxication, lay opinion testimony on a person’s level of intoxication is highly probative, and thus admissible.25 The court then noted that such lay opinion testimony regarding a defendant’s ability to safely operate a motor vehicle comes close to an opinion on the defendant’s guilt or innocence, which poses a significant danger of unfair prejudice.26 This danger is especially significant when the percipient lay witness is a police officer because when an influential witness, such as a police officer, offers an opinion on the ultimate issue of guilt or innocence, it may cause a jury to take the witnesses opinion as truth rather than independently analyze the facts.27 The SJC in Canty recognized that if the opinion testimony is a direct opinion regarding the guilt or innocence of a criminal defendant, then it is inadmissible.28
The SJC’s holding in Canty finally created an explicit prohibition on testimony as to “whether the defendant’s consumption of alcohol diminished his ability to operate a motor vehicle safely.”29 After applying this new rule to the police officer’s testimony at trial, the court concluded that the admission of the police officer’s testimony that the defendant’s “ability to drive was diminished” was improper. Nevertheless, the court held that the admission of the police officer’s testimony that the defendant was “probably impaired” was not prejudicial error.30 Justice Gants disagreed with the defendant’s assertion that the jury would reasonably understand the phrase “probably impaired” to refer to the defendant’s ability to drive because the “opinion was proffered in response to a question asking whether the officer had an opinion ‘as to [the defendant’s] sobriety.’”31 The court refused to limit the use of particular words or phrases in an opinion offered by a witness (lay or expert), recognizing that “[t]he rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description.”32 Reasoning that “‘[p]robably impaired’ . . . is no worse than many of the alternatives (e.g., ‘buzzed,’ ‘tipsy’) to describe a modest level of inebriation,” the court refused to exclude the police officer’s testimony that the defendant was probably impaired.33
First, “the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer.”34 Second, the trial judge mitigated the risk of the jury giving the police officer’s opinion testimony too much weight by specifically instructing the jury that “they ultimately must determine whether the defendant was under the influence of alcohol, and that they may consider any opinion they heard about the defendant’s sobriety.”35 Third, there was overwhelming evidence of the defendant’s guilt, besides the police officer’s improper opinion testimony, which allowed the court to conclude that “the jury’s judgment was not substantially swayed by the error.”36
While the SJC correctly concluded that the police officer’s opinion testimony that the defendant’s “ability to drive was diminished” was improper, it declined to adequately address the issue of whether the police officer opinion testimony that the defendant was “probably impaired” should be admitted at trial.37 This not only presents problems for defendants and their counsel, but also presents significant problems for prosecutors who hope to try their cases correctly and avoid mistrials and overturned convictions. The risk is that police officers may be able to offer opinion testimony that a defendant was impaired while responding to questions other than those regarding a defendants’ sobriety; such a risk is not covered in the court’s opinion, and may, therefore, still constitute improper opinion testimony as to a defendant’s ability to operate a motor vehicle. Defense attorneys will likely challenge the admission of such opinion testimony, potentially resulting in mistrials, appeals, and overturned convictions.
Another problem presented by the SJC’s holding in Canty is that such language mirrors the jury instructions given regarding the under-the-influence element of OUI offenses.38 When opinion testimony that parallels jury instructions is admitted at trial, jurors may become confused regarding their role as the finder of fact. Rather than determine the credibility of trial testimony on their own, jurors who hear police officer opinion testimony that resembles the language the judge reads to them during jury instructions, may defer to the police officer’s opinion testimony because they hear this language from the officer, prosecutor, and judge.39 Because it is natural for jurors to trust judges more than any other participant in a trial, when the instructions given by a judge before deliberations closely resemble the terminology used by the prosecution and its witnesses, they are likely to give this testimony more weight, which may result in unfair prejudice.
While the SJC in Canty declined to recognize this danger, the circumstances in the case did not present the ideal opportunity to confront these problems.40 First, the police officer’s opinion testimony that the defendant was probably impaired was given in response to a question by the prosecutor regarding the defendant’s sobriety, rather than his ability to safely operate a motor vehicle. Second, the judge gave the jury a curative instruction regarding its role as the finder of fact. Lastly, the other evidence of the defendant’s guilt, besides the police officer’s testimony, was overwhelming.41 For these reasons, the risk of unfair prejudice was minimized.
In the wake of the SJC’s decision in Canty, prosecutors and defense attorneys should adjust their trial strategies in order to reach just results in OUI trials. Prosecutors must now better prepare their police officer witnesses before they testify to ensure that they do not offer opinion testimony regarding a defendant’s ability to safely operate a motor vehicle as a result of consuming alcohol. If they do not, they may risk mistrials and overturned convictions in cases where OUI defendants should otherwise be convicted. On the other hand, defense attorneys must be aware of prosecutors and police officers who attempt to slip such improper opinion testimony into evidence at trial and vehemently object and call for a mistrial when this occurs. While ideally the SJC would have recognized the significant risk of unfair prejudice when the language used in opinion testimony offered by police officers closely resembles the jury instructions, the court was correct in declining to do so in Canty. Nevertheless, defense attorneys in OUI trials should continue to present this argument in hopes of one day bringing this issue up on appeal in a case where the factual circumstances better allow the SJC to reach this decision.
Timothy Rodden, Case Note, SJC in Canty Addresses Police Officer Testimony at OUI Trials, 2 Suffolk U. L. Rev. Online 29 (May 12, 2014), http://www.suffolklawreview.org/rodden-canty.
Even where a witness has described the defendant’s appearance, manner, and conduct (e.g., bloodshot eyes, slurred speech, and unsteady gait), a lay opinion by a percipient witness regarding the defendant’s intoxication is still of probative value because such an opinion, especially as to the level of intoxication, may be shaped by observations too numerous or subtle to mention.
Canty, 998 N.E.2d at 329. ↩
To state the obvious, we live in a world that is awash in information. Discoveries of new scientific information occur daily in the laboratories of the world. The Facebook accounts of millions of teenagers contain information about the love lives of their friends. Google traces the search information of its subscribers. Supermarkets use personalized discount cards to trace the purchasing preferences of their customers. The National Security Agency (NSA) has been building a one-million-square-foot data and supercomputing center in Utah, which is expected to intercept and store much of the world’s Internet communication for decryption and analysis. States maintain driver, tax, and voter records. All of these records contain information that can yield profit for some and embarrassment for others.
The First Amendment to the U.S. Constitution dictates access to and dissemination of this information, whereas the Fourth Amendment limits such access and dissemination. Additionally, common-law doctrines of privacy, publicity, and defamation apply to this information, as do copyright, patent, and trademark law. State and federal legislatures race to regulate the collection, storage, and dissemination of this data and information in the public interest. This Article will review recent developments in the constitutional treatment of access to data and information, will comment on an illustrative group of statutory and common-law developments, and will discuss a number of current noteworthy controversies. . . .