United States v. Skinner

MAY 2, 2014 RICHMOND CONVENTION CENTER BLUE RIDGE COMMUNITY COLLEGE

(WEBCAST)

WYTHEVILLE MEETING CENTER (WEBCAST) SUPREME COURT OF VIRGINIA THE CHIEF JUSTICE’S INDIGENT DEFENSE TRAINING INITIATIVE VIRGINIA STATE BAR

Virginia State Bar - CLE Disclaimer

This material is presented with the understanding that the publisher and the author do not render any legal, accounting or other professional service. It is intended for educational and informational use by attorneys licensed to practice law in Virginia. Because of the rapidly changing nature of the law, information contained in this publication may become outdated. As a result, an attorney using this material must always research original sources of authority and update information to ensure accuracy when dealing with a specific client’s legal matters. In no event will the author, the reviewers, or the publisher be liable for any direct, indirect or consequential damages resulting from the use of this material. The views expressed herein are not necessarily those of the Virginia State Bar.

The Chief Justice’s Indigent Defense Training Initiative Hon. Cynthia D. Kinser - Honorary Chair Chief Justice Supreme Court of Virginia Pennington Gap, Virginia Hon. Dennis W. Dohnal (Ret.) – Program Chair The McCammon Group Richmond, Virginia Hon. Walter S. Felton, Jr. – Program Vice Chair Chief Judge Court of Appeals of Virginia Williamsburg, Virginia Steven D. Benjamin, Esq. Benjamin and DesPortes Richmond, Virginia Betty Layne DesPortes, Esq. Benjamin & DesPortes Richmond, Virginia James O. Broccoletti, Esq. Zoby & Broccoletti, P.C. Norfolk, Virginia Manuel A. Capsalis, Esq. Past President Virginia State Bar Leesburg, Virginia Cynthia E. Dodge, Esq. Public Defender Wythe, Bland, and Pulaski Counties Pulaski, Virginia Elizabeth L. Keller Virginia State Bar Richmond, Virginia Alex N. Levay, Jr. Esq. Alex Levay, Attorney, PLLC Leesburg, Virginia E. Scott Moore, Esq. Office of the Chief Staff Attorney Supreme Court of Virginia Richmond, Virginia

W. Edward Riley IV, Esq. Riley & Wells Richmond, Virginia Hon. Angela Edwards Roberts Judge Richmond Juvenile & Domestic Relations Court Richmond, Virginia Hon. Wilford Taylor, Jr. Judge Circuit Court for the City of Hampton Hampton, Virginia Mark J. Yeager, Esq. Yeager & Thelin, P.C. Fairfax, Virginia

FACULTY The Honorable Cynthia D. Kinser Chief Justice Supreme Court of Virginia Pennington Gap, Virginia Mr. Marty Bugbee Infrarisk Assessments, LLC Grosse Pointe, Michigan Daniel K. Gelb, Esquire Gelb & Gelb LLP Boston, Massachusetts Leslie A.T. Haley, Esquire Haley Law, PLC Richmond, Virginia Bonnie H. Hoffman, Esquire Office of the Public Defender Leesburg, Virginia Professor Jennifer Robbennolt University of Illinois Champaign, Illinois Dr. Patricia A. Zapf Forensic & Clinical Psychology Lithia, Florida

FACULTY BIOGRAPHIES THE HONORABLE CYNTHIA D. KINSER – Honorary Program Chair Cynthia D. Kinser serves as the Chief Justice of the Supreme Court of Virginia, a position she assumed on February 1, 2011. She was appointed to the Supreme Court of Virginia by Governor George Allen in 1997 and is currently serving her second 12-year term. Prior to that appointment, Chief Justice Kinser served as a United States Magistrate Judge for the United States District Court, Western District of Virginia. She also practiced law in Pennington Gap; served as a Chapter 7 and 13 Trustee to the United States Bankruptcy Court, Western District of Virginia; was elected Commonwealth’s Attorney for Lee County; and clerked for United States District Judge Glen M. Williams in the Western District of Virginia. Chief Justice Kinser earned her undergraduate degree with highest honors from the University of Tennessee (1974), and her law degree from the University of Virginia School of Law (1977). She is a founding member of the Virginia 4-H Foundation, served on the Board of Directors of the Federal Magistrate Judges Association, and is a member of the Board of Trustees of Appalachian School of Law. Chief Justice Kinser was awarded the 2011 Thomas Jefferson Foundation Medal in Law.

THE HONORABLE DENNIS W. DOHNAL (Ret.) – Program Chair In February 2012, Dennis W. Dohnal joined the The McCammon Group, a mediation practice in Richmond, following his retirement as a United States Magistrate Judge in the Eastern District of Virginia, a position to which he was appointed in January 2000. Mr. Dohnal was admitted to practice in Virginia in 1971, following graduation from Bucknell University (B.A. in History) and the George Washington National Law Center (J.D.). He began practice as an Assistant United States Attorney in the Richmond Division of the Eastern District of Virginia where he served from 1971 to 1974, when he joined the Richmond law firm of Bremner, Baber and Janus. Thereafter, he became a principal in the Richmond firm of Brenner, Dohnal, Evans & Yoffy, PC, in January 1996 until his full-time appointment to the federal bench. Mr. Dohnal is listed in Who’s Who in America and was listed in The Best Lawyers in America during the latter years of his practice. His areas of concentration while in private practice included criminal defense (federal and state) and complex civil litigation. Mr. Dohnal’s activities and positions include past President of the Richmond Criminal Bar Association; past President of the Bar Association of the City of Richmond; past Chair of The Board of Governors of the Criminal Law Section of the Virginia State Bar; Chair of the Virginia State Bar Special Committee to Study the Virginia Code of Professional Responsibility; member of the Virginia State Bar Executive Committee; member of the Virginia State Bar Budget and Finance Committee; and member and president of the John Marshall American Inn of Court. Mr. Dohnal’s honors include selection as the 1999 recipient of the Virginia State Bar’s Criminal Law Section Harry L. Carrico Professionalism Award [to recognize and individual who has made a singular and unique contribution to the improvement of the criminal justice system in the Commonwealth]; election as a fellow of the Virginia Law Foundation; and selection as the 2010 Leader of the Year by Virginia Lawyers Weekly.

THE HONORBLE WALTER S. FELTON, JR. – Program Vice-Chair Walter S. Felton, Jr. was elected to the Court of Appeals of Virginia in September 2002, and has served as Chief Judge since April 2006. Judge Felton served as a Captain in the United States Army Judge Advocate General Corps from 1969-1973, at which time he began his law practice in Suffolk, Virginia. In 1982, Judge Felton was appointed to the faculty of the William & Mary Law School, where he subsequently attained the rank of Professor of Law, and served as Legislative Counsel for the College. He also served as Administrator of the Commonwealth’s Attorneys Council, the state agency responsible for training the Commonwealth’s prosecutors. In 1994, he was appointed as Deputy Attorney General of Virginia, heading the Intergovernmental Affairs Division, and in 1995 was appointed as Senior Counsel to the Attorney General. Thereafter, he served as Counsel to the Governor of Virginia, and as Director of Policy. Judge Felton served as a member of the Chief Justice’s Commission on Virginia Courts in the 21st Century, as Chair of the Task Force on the Structure of the Judiciary, and served on the Chief Justice’s Pandemic Commission. He currently is a member of the Judicial Council of Virginia, the Executive Committee of the Judicial Conference of Virginia, and the State/Federal Judicial Conference. He serves on the Chief Justice’s New Judge Mentoring Committee and has served as Vice Chair of the Chief Justice’s Indigent Defense Training Initiative since its inception in 2005. Judge Felton also serves as a member of the Boyd Graves Conference of The Virginia Bar Association. He previously served as a member of the board of governors of the Virginia State Bar’s Section on the Education of Lawyers, and as faculty member of the Professionalism Course of the Virginia State Bar. He is a member of the Council of Chief Judges of the State Courts of Appeals of the United States, where he currently serves as Chairman of the Annual Meeting Scholarship Committee. Judge Felton received his both his undergraduate and law degrees from the University of Richmond.

MARTY BUGBEE Marty Bugbee is the president of Infrarisk Assessments, LLC, a full service professional investigations firm located in Grosse Pointe, Michigan. Marty served as a Task Force Commander with the Michigan State Police and as a Special Agent with the Air Force Office of Special Investigations (AFOSI). Marty has extensive experience developing complex collaborative investigative efforts in the areas of white-collar crime and fraud investigations. He also developed and coordinated the delivery of multiple courses in advance investigative techniques and anti-terrorism and intelligence programs. As an AFOSI Agent, Marty served on several battle staff groups, advising the commander on terrorism and security issues, in support of national defense operations. Marty has extensive experience in case preparation and supervision and has overseen the prosecution of many high profile criminal cases. Moreover, he has developed a wide network of professional counterparts in local, state, Federal, and private sector investigations. Marty was also a lead member of the anti-terrorism planning efforts in support of such events as Superbowl XL 2006, MLB All-Star Game 2005 and MLB World Series 2006, and the NCAA Men's Basketball Final Four 2009. Marty brings his vast knowledge of investigative techniques and his unique skill sets to Infrarisk Assessments, offering cutting edge investigations, intelligence services, and training to help address any personal or corporate need for information to help decision makers arrive at sound decisions to protect their resources and assets.

DANIEL K. GELB Daniel K. Gelb, Esquire is a partner at the law firm of GELB & GELB LLP (www.gelbgelb.com) in Boston, Massachusetts where he practices in the areas of general and white collar criminal defense, regulatory proceedings, complex civil litigation and arbitration. Dan also defends clients against allegations of professional license violations, and academic misconduct. Prior to joining GELB & GELB LLP, Dan was an Assistant District Attorney with the Norfolk County District Attorney’s Office in Massachusetts. Among other professional affiliations, Dan is a member of the Advisory Board for Bloomberg BNA’s White Collar Crime Report, and the National Association of Criminal Defense Lawyers’ (“NACDL”) White Collar Crime Committee, as well as NACDL’s Amicus Committee for which he is the vice chair for the First Circuit. Dan is a frequent speaker and author on electronic discovery and evidence, as well as other subject matters impacting both civil and criminal trial practice and procedure. Dan has been published by various media outlets including Bloomberg BNA, Corporate Counsel Magazine, The Champion Magazine, and The New York Times in the “Room for Debate” section of the newspaper’s website, and Criminal Justice Magazine published by the American Bar Association. He is also the co-author of the book Massachusetts E-Discovery & Evidence: Preservation Through Trial (3d. Ed.) (©2014) published by Massachusetts Continuing Legal Education, Inc. In addition to being selected by Massachusetts Lawyers Weekly and the Massachusetts Bar Association as one of the twenty honorees practicing law for 10 years or less to receive the “Up & Coming Lawyer” award for the year 2012, Dan has received an AV Preeminent® peer review rating from Martindale-Hubbell®, and has been listed in Massachusetts and New England Super Lawyers®. Dan received his B.A. in English from Tufts University; J.D. from Boston College Law School; and M.B.A. from Boston College.

BONNIE H. HOFFMAN Bonnie is the Deputy Public Defender for Loudoun County, Virginia and has been with the Office for over 18 years. She earned her law degree from George Mason University School of Law and her undergraduate degree from the University of Virginia. Her practice includes representation of both adults and juveniles, handling cases from arraignment through direct appeal. She has tried over 75 jury trials and countless bench trials ranging from drunk driving on a farm tractor to first degree murder. Bonnie is a graduate of the National Criminal Defense College, has served on numerous local and state committees and task forces associated with various criminal justice issues and has lectured and presented on a variety of trial and indigent defense related topics for organizations including NACDL, NLADA, VWAA, VTLA, the Charleston School of Law, the Texas Association of Criminal Defense Lawyers and the West Virginia, Virginia and Maryland Indigent Defense Commissions. She serves on the Board of Directors for the National Association of Criminal Defense Lawyers, is a former chair of NACDL’s Indigent Defense Committee and currently chairs NACDL’s Federal Indigent Defense Task Force. She is the author of a series of articles, “Gideon’s Champions” which highlight the work of public defenders from across the country. In 2013 Ms. Hoffman received the Robert C. Heeney Award. NACDL’s most prestigious award, the Robert C. Heeney Award, is given annually to the one criminal defense attorney who best exemplifies the goals and values of the Association, and the legal profession. Ms. Hoffman is the first active state public defender to receive this award.

LESLIE A.T. HALEY Leslie A.T. Haley is currently providing legal ethics and law office management advice and counsel to lawyers and law firms. Ms. Haley is the former Senior Assistant Ethics Counsel for the Virginia State Bar where she spent fourteen years advising Virginia lawyers and judges on questions of ethics and lawyer advertising as well as unauthorized practice of law issues. She served as staff liaison to the Legal Ethics Committee and drafted numerous advisory ethics opinions. She is a frequent author and lecturer on various CLE topics both in Virginia and on a national level. Ms. Haley is President of the Greater Richmond Bar Foundation board, a member of the Lewis F. Powell, Jr. American Inn of Court and a past-president of the Metropolitan Richmond Women’s Bar Association. She is also a 2010 recipient of the Influential Women of Virginia Award.

JENNIFER ROBBENNOLT Professor Jennifer Robbennolt, JD, PhD, is Professor of Law and Psychology at the University of Illinois. Professor Robbennolt’s research integrates psychology into the study of law and legal institutions, focusing primarily on legal decision-making in the areas of torts and dispute resolution—including negotiation—and the use of empirical research methodology in law. Professor Robbennolt is co-author of the recent book Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making, a textbook on Empirical Methods in Law (with Illinois colleagues Robert M. Lawless and Thomas S. Ulen), and the influential casebook, Dispute Resolution and Lawyers. She has served as secretary of the American Psychology-Law Society and as the chair of the AALS section on law and the social sciences and is on the editorial boards of Psychology, Public Policy, and Law; Law and Human Behavior; and Law and Social Inquiry. Professor Robbennolt has been awarded the Wayne R. LaFave Award for Excellence in Faculty Scholarship, the Professional Article Prize awarded by the CPR International Institute for Conflict Prevention & Resolution, and the Shook, Hardy, & Bacon Excellence in Research Award. She holds the John E. Cribbet Excellence in Teaching Award and has been awarded the Blackwell Sanders Peper Martin Distinguished Faculty Achievement Award for outstanding teaching and the Gold Chalk Award for dedication and service to the advancement of graduate student education.

PATRICIA A. ZAPF Patricia A. Zapf, PhD is a forensic and clinical psychologist specializing in criminal forensic psychological evaluation, consultation, and expert testimony. Dr. Zapf is the President-Elect of the American Psychology-Law Society (AP-LS; Division 41 of the American Psychological Association) and was appointed as Fellow of the American Psychological Association (APA) and Distinguished Member of the American Psychology-Law Society (AP-LS) in 2006 in recognition of her outstanding contributions to the science and profession of psychology. Dr. Zapf has published over 85 peer-reviewed journal articles, chapters, books, and manuals, including Forensic Assessments in Criminal and Civil Law: A Handbook fort Lawyers (Oxford) as well as Evaluation of Competence to Stand Trial, one of the books in Oxford’s Best Practices in Forensic Mental Health Assessment series, and a number of forensic assessment instruments. In addition, she is currently Editor of the American Psychology-Law Society’s (AP-LS; Division 41, APA) book series, Associate Editor of Law and Human Behavior, the official journal of the APLS, a Consulting Editor for Psychology, Public Policy, and Law, an APA journal, and an Editorial Board Member for the International Journal of Forensic Mental Health and Assessment.

Dr. Zapf is a Professor in the Department of Psychology at John Jay College of Criminal Justice, The City University of New York and has also been a member of the Psychology and Law faculty at the University of Alabama. In addition, Dr. Zapf provides professional training to mental health and legal professionals, both nationally and internationally, and works with state and forensic mental health organizations to develop standardized professional training for their service providers. 4-2-14

Tenth Annual Indigent Criminal Defense Advanced Skills for the Experienced Practitioner May 2, 2014 PROGRAM AGENDA 8:00 a.m.-8:30 a.m.

REGISTRATION

8:30 a.m. –8:45 a.m.

Opening Remarks The Honorable Cynthia D. Kinser Chief Justice, Supreme Court of Virginia

8:45 a.m. –9:45 a.m.

THE CONSTITUTION IN THE CLOUD: The Fourth Amendment and Electronically Stored Data Daniel K. Gelb. Esq. Gelb & Gelb LLP Boston, MA

9:45 a.m. – 10:00 a.m.

BREAK

10:00 a.m. – 11:00 a.m.

CAPTURING EVIDENCE AND IDENTIFYING WITNESSES FROM DIGITAL AND SOCIAL MEDIA Mr. Marty Bugbee Infrarisk Assesssments, LLC Grosse Pointe, MI

11:00 a.m. – 12:00 p.m.

FINDING, FUNDING & USING EXPERTS Bonnie H. Hoffman, Esq. Office of the Public Defender Leesburg, VA

12:00 – 12:45 pm

BOX LUNCHES – ALL LOCATIONS

12:45 p.m. – 1:45 p.m.

GETTING THE MOST OUT OF YOUR EXPERTS: Preparing and Cross-Examining Experts on Competency and other Mental Health Issues Dr. Patricia A. Zapf Forensic & Clinical Psychology Lithia, FL

1:45 p.m. – 2:45 p.m.

THE PSYCHOLOGY OF NEGOTIATION AND CLIENT COUNSELING Prof. Jennifer Robbennolt University of Illinois Champaign, IL

2:45 p.m. – 3:00 p.m.

BREAK

3:00 p.m. – 4:00 p.m.

ETHICS – DEALING WITH CLIENT COMPLAINTS ETHICALLY Leslie A.T. Haley, Esq. Haley Law, PLC Richmond, VA

4:00 – 4:15 p.m.

Closing Remarks

** Six (6) hours of CLE credit, including one (1) hour of ethics

TABLE OF CONTENTS - DISC CHAPTER I – The Constitution in the Cloud: The Fourth Amendment and Electronically Stored Data Daniel K. Gelb, Esq. Defending a Criminal Case from the Ground to the Cloud

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A Dilemma for Criminal Defense Attorneys

I-A-12

Litigating Criminal Procedure Issues When ‘ESI’ is the Subject of ‘CSI’

I-A-18

Understanding the E-discovery Obligations Before Making a Certification

I-A-22

Avoiding Pitfalls When Conducting Corporate Internal Investigations

I-A-25

Federal Rule of Evidence 502: 21st Century Evidentiary Privilege

I-A-30

An Approach to Cell Phone Evidence for Criminal Defense Attorneys

I-A-33

It’s Time to Level The Playing Field – The Defense’s Use of Evidence From Social Networking Sites

I-A-40

Controlling cost of e-discovery more important than ever

I-A-44

The New Federal Rules of Civil Procedure on Electronic Discovery

I-A-46

The Importance of E-Discovery in a Superior Court Rule 9C Conference

I-A-49

E-Discovery in Criminal Cases: A Need for Specific Rules

I-A-50

US v. Flores-Lopez: Does the Phone Booth Now Reside Inside the Phone?

I-A-74

United States v. Skinner

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PowerPoint Presentation

I-B-1

CHAPTER II – Capturing Evidence and Identifying Witnesses from Digital and Social Media Mr. Marty Bugbee PowerPoint Presentation

II-1

CHAPTER III – Finding, Funding & Using Experts Bonnie H. Hoffman, Esq. Finding, Funding and Using Experts (In Virginia) I.

The Basics a. Do I need an expert? b. What kind of expert do I need? c. What should I do before seeking an expert?

III-1 III-1 III-1 III-1 III-2

II.

Funding for Indigent Defendant Experts a. Right to an Expert

III.

Making a Request for Funds a. Procedural Issues b. Alternative Sources

IV.

Finding Experts a. b. c. d. e. f. g. h. i.

V.

Ask Your Friends Expert Service Providers: Organizations such as TASA Use the Literature in the Field Use the Cases in the Field Use the Experts Expert Organizations Use Your Community DFS Vet Your Expert, the Prosecutor Will:

Using an Expert a. Set the Rules b. Experts and the Rules of Evidence

III-3 III-3 III-6 III-6 III-11 III-11 III-11 III-11 III-12 III-12 III-12 III-12 III-12 III-12 III-13 III-13 III-13 III-14

CHAPTER IV – Getting the Most Out of Your Experts: Preparing and Gross-Examining Experts on

Competency and Other Mental Health Issues Dr. Patricia A. Zapf

A Meta-Analytic Review of Competency to Stand Trial Research

IV-A-1

Mental Competency Evaluations

IV-A-54

Evaluation of Competence to Stand Trial in Adults

IV-A-62

PowerPoint Presentation

IV-B-1

CHAPTER V – The Psychology of Negotiation and Client Counseling Prof. Jennifer Robbennolt Negotiating and Mediating

V-1

A Psychological Expanded Model of Negotiation

V-2

Constructing Initial Proposals

V-4

The Dynamics of Negotiation

V-23

Responding to a Counterpart’s Proposal

V-35

Mediation

V-43

CHAPTER VI – Ethics – Dealing with Client Complaints Ethically Leslie A.T. Haley, Esq. An Overview of the Disciplinary System of the Virginia State Bar I.

VI-A-2

Authority for the Attorney Disciplinary Process

VI-A-2

Advisory Opinions

VI-A-2

III.

Complaints about Lawyers

VI-A-4

IV.

The Intake Process (Para 13-10)

VI-A-4

The Preliminary Investigation

VI-A-5

Preliminary Proceedings at the District Committee Level

VI-A-6

District Committee Hearings (Para 13-16)

VI-A-8

II.

V. VI. VII. VIII. IX. X.

Disciplinary Board Proceedings (Para 13-18)

VI-A-11

Election of a Three-Judge Panel (Para 13-17 D)

VI-A-12

Miscellaneous Provisions of Interest

VI-A-13

Avoiding Bar Complaints I. II. III.

VI-A-14

What Can You Do To Avoid Complaints?

VI-A-14

Myths and Misconceptions About Bar Complaints

VI-A-18

Twelve Trouble Areas

VI-A-19

PowerPoint Presentation

VI-B-1

CHAPTER I

The Constitution in the Cloud By Daniel K. Gelb, Esq.

Defending a Criminal Case from the Ground to the Cloud BY DANIEL K. GELB

E

lectronic discovery, known as “e-discovery,” is the pretrial harvesting, review, and exchange of electronically stored information (ESI). In civil litigation, the proliferation of e-discovery drove courts across the country to interpret the Sedona Principles  and case law in various jurisdictions. Issues courts addressed included the form of production, spoliation of evidence and cost- shifting. (For specific cases, see the sidebar, Zubulake & Morgan Stanley: Civil Court Decisions on page 30.) The widespread interpretations of the Sedona Principles (a set of 14 principles developed to apply the basic standards of discovery to ESI) and the analyses contained in legal cases and authorities drew the attention of the federal judicial system to the need for specific rules of procedure addressing ESI in civil litigation. As a result, certain provisions amending the Federal Rules of Civil Procedure (FRCP) concerning the pretrial exchange of ESI were promulgated. Importantly, the initial phase of civil practice is most impacted by the e-discovery rules governing court-ordered discovery plans for the exchange of ESI that are addressed in pretrial scheduling conferences (FRCP 16), which follow the parties’ obligation to meet and confer in anticipation of the initial scheduling conference with the court (FRCP 26). In addition, civil litigation discovery tools, such as interrogatories (FRCP 33), document requests (FRCP 34), sanctions for bad faith destruction of ESI (FRCP 37), and third-party subpoenas (FRCP 45), were most substantially affected by the “new rules” that the United States Supreme Court adopted in 2005 and be-

came effective December 1, 2006. The new rules relating to e-discovery and development of seminal case law such as Zubulake, Morgan Stanley (see sidebar, Zubulake & Morgan Stanley, page 30), and their multijurisdictional offspring catalyzed a focus on a systemic adoption of “best practices” in handling the collection, review, and production of ESI in the civil litigation context. (See See EDRM: The Electronic Discovery Reference Model, http://www.edrm.net/ (last visited May 28, 2012).) A consideration of the EDRM and the technological supporting resources (e.g., early case assessment software, industry licensed forensics, large-scale internal and cloudbased hosted document review tools, etc.) available to civil litigators reflects that the approach to e-discovery is becoming more standardized across jurisdictions. Codified rules that require parties to identify, review, and produce ESI lead to the development of best practices (e.g., a proper protocol). Unlike civil litigation, criminal litigation remains wedded to traditional rules of court that were promulgated well before the advent of ESI. The subject of e-discovery and the role it plays in prosecutions is in large part dependent upon the idiosyncratic approach by judges who are not guided by rules of court. As a result, the decisions are inconsistent and the predictability of what will transpire is uncertain. In the interim, the most prudent tactic for criminal defense attorneys is to collaborate among themselves to develop best practices for addressing ESI issues. The following is a proposed set of guidelines for criminal defenders to employ in their attempt to effectively identify, access, and review ESI with a view

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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toward either potentially moving to suppress or admit ESI at trial. In order to make the following as user friendly as possible, the guidelines are presented in phases corresponding to the common progression of a criminal case.

Phase 1: Preindictment Identification of Relevant Sources of ESI

One need only venture into a public place to see that mobile computing devices are the quintessential medium for communicating with others and accessing information. (See Aaron ​Smith, Pew Internet & Am. Life Project, Americans and their cell phones, (2011) [hereinafter Pew Survey], http://tinyurl.com/4yfneum.) Traditional cell phones, “smartphone” handhelds such iPhones, Blackberries, or Androids, and mobile computing devices such as netbooks and iPads are unifying the desktop and mobile computing environments. According to the Pew Survey, 83 percent of American adults own some type of mobile phone based upon a telephone survey conducted in 2011. (Id.) Making traditional telephone calls is the most widely used cell phone function. However, it is notable that 73 percent of Americans rely on short messaging service (SMS) (i.e., “text messaging” or “texting”) and taking photos as the next most frequently used features on their mobile devices. Moreover, voice calls, texting, and photos were followed by sending photos or videos to others via multimedia messaging service (MMS) (54 percent of users), and accessing the Internet on their handheld devices (44 percent of users). Using one’s cell phone to access certain “social media” services or to engage in video “chat” was less popular (approximately 15 percent of users). (Id.) The exponential growth of desktop and mobile technology, and their respective integration into the “cloud,” results in the creation of massive, dynamic volumes of ESI. Many of the potentially relevant data sources, such as e-mail, jump drives, and handheld devices, can be paired with each other either across the cloud, wirelessly over a Wi-Fi network, or through a Bluetooth connection. Given the statutory maze and procedural hurdles defendants face in their endeavors to access potentially relevant sources of data, a strategic effort must be made in order to determine what sources may exist for the accused in the first place. Taking such an inventory with the client is attorney-client privileged and protected by the work product doctrine. (See the sidebar, Sources of ESI, page 36.) DANIEL K. GELB, a partner at Gelb & Gelb LLP, in Boston, focuses

his practice in white collar and general criminal defense matters, complex civil litigation concentrating in business and securities, arbitration, and regulatory proceedings.

The following are examples of widely used technologies and corresponding cases that have addressed the underlying technology. Global positioning system (GPS). GPS is a location system based on a schematic of satellites initially developed by the United States Department of Defense. The system operates globally 24 hours a day, 365 days per year. Among its other uses, GPS was developed because of its extremely useful application as a military locating tool. For individuals, GPS mapping capabilities have become inextricably tied with daily living (e.g., vehicle navigation systems, smart phones, mobile broadband, social networking applications, etc.). GPS has become a crucial business operations tool to coordinate vehicle fleets, deliveries and sales forces, as well as track driving habits. A recent case addressing the technology is U.S. v. Jones, 565 U.S. 1 (2012) (using a GPS device to track human movement is a search under the Fourth Amendment). Alphanumeric paging. One can call a number and speak to a live operator who, in turn, can transmit an alphanumeric SMS text message to the end user (i.e., “page the user”). Alternatively, one can transmit the alphanumeric content via a web-based client (similar to webmail over the Internet). Because paging devices continue to be used by industries that cannot risk relying solely on cellular phone coverage, the text message is sent by “FLEX” technology from the provider to the paging device and may be copied to a cell phone. Alternatively, a related protocol called “ReFLEX” permits two-way messaging between devices. ReFLEX and SMS are both “text messages,” but the technology is different, thereby making the discoverability of the ESI behind it different. A case addressing the technology is City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010) (holding that public employer may access text messages in hardware it issues to employees without violating reasonable expectations of privacy). Text messaging/SMS. Short messaging service or text messaging is a service feature built into cell phones, online messaging services, or mobile communication systems using standardized communications protocols that allow the exchange of short text messages between fixed line or mobile phone devices. A case addressing the technology is United States v. Suarez, No. 09-932, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (finding missing text message evidence prejudicial and issuing a permissive adverse inference instruction because bad faith was not found on behalf of the government). Social networking services/media. A social networking service is a web-based platform that focuses on building and generating social networks among its users. Typically, the network shares interests and/or activities. A social network service consists of a representation of

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Zubulake & Morgan Stanley: Civil Court Decisions Initially, it was in civil court where the legal challenges of ESI were first addressed. Below is the judicial history of two seminal civil cases: • Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309 (S.D.N.Y. May 13, 2003) (addressing the legal standard  for determining the cost allocation for producing e-mails contained on backup tapes). • Zubulake v. UBS Warburg LLC (Zubulake II), 230 F.R.D. 290 (S.D.N.Y., May 13, 2003) (concerning issue not involving e-discovery). • Zubulake v. UBS  Warburg LLC (Zubulake III), 216 F.R.D. 280 (S.D.N.Y. July 24, 2003) (allocating backup tape restoration costs between plaintiff and defendant). • Zubulake v. UBS Warburg LLC  (Zubulake IV), 220 F.R.D. 212 (S.D.N.Y. Oct. 22, 2003) (ordering sanctions against defendant for violating its duty to preserve evidence). • Zubulake v. UBS Warburg LLC  (Zubulake V), 229 F.R.D. 422 (S.D.N.Y. July 20, 2004) (explaining, among other issues, counsel’s duty to effectively communicate to a client its discovery obligations to ensure information is discovered, retained, and produced). • Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., No. 502003CA005045XXOCAI, 2005 WL 679071, at *7 (Fla. Cir. Ct. Mar. 1, 2005), rev’d on other grounds sub nom. • Morgan Stanley & Co., v. Coleman (Parent) Holdings, Inc., 955 So. 2d 1124 (Fla. Dist. Ct. App. 2007). • Press Release, FINRA, Morgan Stanley to Pay $12.5 Million to Resolve FINRA Charges That It  Failed to Provide Documents to Arbitration Claimants, Regulators (Sept. 7,  2007), http:// tinyurl.com/8yewoml. each user (often a profile), his or her social links, and a variety of additional services. Most social network services are web-based and provide means for users to interact over the Internet (i.e., through e-mail and instant messaging). Social networking services typically entail the ability for users to share ideas, activities, events, and interests within their individual networks. The adaptation of social networking services to traditional business marketing campaigns has resulted in social networking services providing advertising opportunities that have expanded the scope of the average network. One of the prominent cases addressing social media in the criminal prosecution context is United States v. Drew, 259 F.R.D.

449 (C.D. Cal. 2009) (vacating defendant’s misdemeanor conviction for violating the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, for intentionally accessing a computer without proper authorization in furtherance of the commission of a criminal or tortuous act (jury acquitted defendant on the felony charge), because the statute was void for vagueness as applied to how MySpace was used by defendant). Because the context of ESI—rather than its content—may be exculpatory, accessibility becomes extremely challenging for criminal defenders when more often than not the ESI itself is not in the custody and control of the prosecution. This makes it nearly impossible to obtain production even upon moving in court for production on a compulsory basis. (See Fed. R. Crim. P. 16.) For example, meta data, or the electronic identifiers and properties associated with ESI, including but not limited to, e-mail, text messages, electronic mailing lists, and social media postings, are extremely difficult for the accused to access under federal statutory provisions protecting the privacy of such content as maintained by the entities that “host” the ESI. (See Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510–22 (Wiretap Statute); 2701–12 (Stored Communications Act).) As discussed more fully below, the government has tools to access various forms of ESI for investigative purposes. However, absent a compelling need to pursue the ESI without first providing notice to the subscriber (e.g., third-party witness and/or target) in the context of a wiretap order, the government would much rather pursue a consensual production of ESI in response to a grand jury subpoena. (See Allison C. Stanton & Andrew J. Victor, What We See in the Clouds: A Practical Overview of Litigating Against and on Behalf of Organizations Using Cloud Computing, 59 U.S. Att’ys’ Bull. 34, 38 (May 2011) (“In the search for evidence, several potential benefits are available for litigators if a client agency or investigation target uses cloud computing to store their information. First, email and data in the cloud will be centrally located as opposed to dispersed across different systems, programs, organizational divisions, and physical locations. As a result, subpoenas, civil investigative demands, or document requests seeking information from these centralized systems should yield faster responses.”).) The first aspect of effective preindictment representation is having a strong understanding of the ethical obligation grand jury subpoenas and other governmental investigation tools trigger for counsel regardless of whether they are criminal, civil, administrative, or regulatory in nature. Criminal defense attorneys must be as agile as their prosecutorial counterparts when addressing ESI issues by knowing the various types, storage lo-

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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cations, and variations of ESI. (See John Haried, Flying Cars and Web Glasses: How the Digital Revolution Is Changing Law Enforcement, 59 U.S. Att’ys’ Bull., 25, 29 (May 2011) (“[A]ccurately framing the scope of a demand for ESI in a search warrant, grand jury subpoena, administrative subpoena, civil discovery request, or civil investigative demand will be a critically valuable skill.”).) The craftier the prosecution becomes with investigative requests, the higher the bar is raised on defense counsel’s need to identify where a client’s ESI resides and the steps to undertake and preserve it. It is particularly crucial for defense counsel to be familiar with how to preserve and manage ESI in the preindictment and/or investigatory stages of a criminal proceeding. (See In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006) (relying on the justice obstruction power enumerated under 18 U.S.C. § 1519, the government sought evidence pursuant to the crime-fraud exception where defense counsel had possibly aided a grand jury target in destroying ESI (i.e., e-mails) on the company’s information systems).) Failing to properly handle preindictment evidence in the form of ESI that is volatile and dynamic will only lead to bigger problems under the Sixth Amendment as the case progresses. (See Strickland v. Washington, 466 U.S. 668 (1984) (holding that test for prejudice resulting from the ineffectiveness of criminal defense counsel requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different); Cannedy v. Adams, No. ED CV 08-1230-CJC, 2009 WL 3711958 (C.D. Cal. Nov. 4, 2009) (finding that counsel’s failure to investigate and pursue evidence from social networking sites could be ineffective assistance of counsel).) In addition to obstruction of justice allegations and other ethical violations, counsel runs the risk of potentially capitulating to the preindictment waiver of a statutory or legal privilege as a result of failing to understand the implications of not identifying all relevant data sources, and the statutory nuances between grand jury subpoenas and search warrants for ESI. (See In re Grand Jury No. 09-1, No. 6:10-mc-38-Orl-31DAB, 2010 WL 2330273 (M.D. Fla. 2010).) In re Grand Jury No. 09-1 involved the court quashing a grand jury subpoena seeking, among other items, “cellular telephones and stored information, memory cards, microchips, data cables and vendor software to facilitate transfer of images, audio equipment, video or surveillance equipment, fax machines, blackberries, telephone numbers, passwords, laptop computers, desk-top [sic] computers.” The court held that the grand jury’s subpoena was improper on procedural grounds and that “the U.S. Attorneys’ Office ignore[d] a rather fundamental (but perhaps increasingly

ignored) proposition of law: a subpoena is not a search warrant.” Another trap for the unwary is risking waiver of an “act of production” privilege when the actual “act of producing” evidence to the prosecution contains inherently communicative content itself that is completely independent of the content of the documents or data produced. (See Fisher v. United States, 425 U.S. 391, 410 (1976) (noting that although the contents of a document may not be privileged, the act of producing the document may be.).)

Phase 2: Pursuing Evidence of Computer Hardware, Geography, Mobile Communications, Web 2.0, and the Cloud

An aggressively emerging subset of e-discovery—particularly in the criminal defense arena—is what may be termed “c-discovery”: ESI derived from computers, cars, cell phones, and the cloud. These sources of ESI are rapidly becoming intertwined. Therefore, once counsel has identified the relevant sources of ESI pertaining to the accused, the next phase entails determining how and whether to pursue it. The rapid growth of mobile communications use has evolved into the most popular means of connecting with others. Therefore, the pursuit of cell phone evidence and other ESI derived from mobile devices is becoming the epicenter of postindictment discovery for criminal defenders. As of December 2011, there are more cell phones in the United States than there are people. According to CTIA-The Wireless Association—an international not-for-profit membership organization representing the international wireless communications industry— there are approximately 317 million people living in the United States and approximately 331.6 million mobile communication devices (i.e., individual cell phone service subscribers). For example, it is not uncommon for one individual to have a “personal” cell phone and a “work” cell phone and two separate cell phone subscriptions. According to CTIA, 104 percent of the population in the United States (including Puerto Rico, Guam, and the US Virgin Islands) maintains control over an active mobile communication device. (See Wireless Quick Facts, Year-End Figures, CTIA, (Dec. 2011), http://www. ctia.org/consumer_info/index.cfm/AID/10323.) To place these statistics in perspective, in December 2006 there were approximately 233 million cell phone subscribers with 76.6 percent of the US population and its territories living with mobile communication access. (Id.) This massive leap in cell phone usage in the past six years has not only created evidence of historical carrier usage, but also geographical evidence through cell tower triangulation data. Moreover, cell service carriers have collaborated with hardware manufacturers to preconfig-

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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ure devices with social networking software applications. Social media and other forms of Web 2.0 services (e.g., YouTube) are becoming such an integral method for how society communicates that a majority of handheld devices are preconfigured with social media and other related software applications such as Facebook, Twitter, LinkedIn, MySpace, and Google+. As mobile devices continue to become inextricably tied to how modern society conducts its activities, the greater and more dynamic will become the volume and forms of ESI being created.  In addition to the desktop computing market, the demand for mobile computing developed the need for centralized administration of software applications (“apps”) that run on desktops and laptops as well as mobile devices. Web 2.0 platforms such as Facebook, MySpace, and

with the White House. (See, “Stay Connected” textbox in the bottom right-hand corner of the webpage at http://www.whitehouse.gov.) Some mobile apps run locally on the handheld device itself; however, most of them are gateways to what is known as “software-as-a-service,” or “SaaS” for short. In most instances, selecting an icon on the home screen of one’s iPhone, BlackBerry, or Droid device results in the launching of a software application that is running remotely from the handheld device itself, which is commonly referred to as running in the “cloud.” In essence, “cloud computing” is the provisioning of computer resources and services (e.g., software, storage, etc.) without requiring the subscriber to the service (i.e., the user) to know the location and other details of the comput-

Cell phones and social networking services are fertile sources of both inculpatory and exculpatory ESI. Twitter that reside on hardware prior to its purchase are just a few major examples of why cell phones and social networking services are fertile sources of both inculpatory and exculpatory ESI. The number of mobile device users accessing social media services—in addition to traditional desktop users—will only increase over time as social media platforms become more pervasive. (See Facebook Growth Stats for 2011–2012, Internet World Stats, http://www.internetworldstats.com/facebook.htm (as of Mar. 31, 2012, 49.9 percent of the US population uses Facebook in some capacity).) A prime example of the intertwining of desktop and mobile computing is seen in how today’s mobile technology market heavily concentrates on social media tools in the personal, business, and governmental contexts. Social media is the benchmark by which the concept of “Web 2.0” has been measured. The traditional Internet provided the opportunity for online visitors to passively review online content. Web 2.0—the second generation Internet—has enabled online visitors to actively contribute to the web-based content. Among the Web 2.0 technology is social media—now the predominate means of communicating simultaneously with large groups of users, each of whom has proactively chosen to provide and receive online content using the same platform to communicate. Notably, one social media user is the United States government, which can be followed on Facebook, Twitter, and YouTube. (See, e.g., “Stay Connected” textbox in the bottom righthand corner of the webpage at http://www.justice. gov/.) The federal government also enables anyone else to use the same social media services to stay connected

ing infrastructure or be required to maintain it. This is why cloud-based services are provided through monetary subscription unless they generate revenue by other means such as advertising (e.g., Google, Twitter, Facebook, MySpace, Foursquare, etc.). In the social networking context, when a user launches the LinkedIn or Facebook application on a handheld device, the software running on the phone simply provides a license to the portal over the Internet that accesses the cloud-based delivery of the respective social media software application. The programs and data are hosted, run, and maintained remotely over the Internet; however, the online content is accessed from the handheld device. In productivity content, when one opens Microsoft Word on his or her desktop in the traditional manner, the user is typically running the software application locally on the hard drive or on a network server owned by the subscriber to the Microsoft software itself. Alternatively, Microsoft has begun marketing to the demand for cloud-based SaaS with its online hosted version of MS Office (i.e., MS Office 365). Microsoft centrally hosts and maintains Office 365 in the cloud. Cloud-based SaaS enables both desktop and handheld users to access the software via the Internet. If one can access the Internet, then one can access the software, and if one can access the software, then one can gain access from anywhere to content that the software creates. Technological advancements in the both processing speed and memory in mobile and desktop computing has resulted in the unification of communications technology between the desktop computer and the mobile handheld and cell phone devices.

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Challenges faced by defense pursuing ESI. Alternatively, with respect to criminal litigation matters, what are “best practice(s)” that may be adopted by criminal defenders are not quite as clear because the Federal Rules of Criminal Procedure as well as nearly every state criminal procedural counterpart are completely devoid of dedicated provisions that parallel the aforementioned amended codified federal rules relating to ESI. (See Daniel B. Garrie & Daniel K. Gelb, E-Discovery in Criminal Cases: A Need for Specific Rules, 43 Suffolk U. L. Rev. 393, 399 (2010).) The reality is that in criminal litigation, most evidence, including electronic evidence, is obtained by the government well in advance of indictment. Moreover, Federal Rule of Criminal Procedure 16 does not compel the government to produce the ESI unless it is being used in the prosecution’s case-in-chief. The relevant portion of Rule 16 with respect to individual criminal defendants is contained in subsection (a)(1)(A)–(B), and, as to organizational defendants, in subsection (a)(1)(C). Absent rules of criminal procedure addressing areas of discovery the parties must address in criminal prosecutions, the approach to e-discovery is a moving target in the criminal litigation context. First, there is a complete imbalance between the government’s statutory ability to access ESI and an accused’s lack of ability. The following excerpt from the Federal Communications Commission’s website on the Communications Assistance for Law Enforcement Act (CALEA) against Rule 16 reflects the glaringly disparate rights between the accessibility of evidence the government maintains by operation of statute and the lack of these rights afforded to a citizen (i.e., the accused): In response to concerns that emerging technologies such as digital and wireless communications were making it increasingly difficult for law enforcement agencies to execute authorized surveillance, Congress enacted CALEA on October 25, 1994. CALEA was intended to preserve the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities. Common carriers, facilities-based broadband Internet access providers, and providers of interconnected Voice over Internet Protocol (VoIP) service—all three types of entities are defined to be “telecommunications carriers” for purposes of CALEA section 102, 47 U.S.C. § 1001—must comply with the CALEA obligations set forth in CALEA section 103,

47 U.S.C. § 1002. (Communications Assistance for Law Enforcement Act (CALEA), FCC, http://transition.fcc.gov/calea/ (last updated Feb. 21, 2007).) Alternatively, if the government either does not have ESI in its custody or control or does not intend to introduce at trial such ESI in order to corroborate its casein-chief, it is extremely challenging for the accused to access most electronic evidence in order to ascertain other relevant data sources. For example, the government could argue that its internal analysis of digital forensics evidence on a desktop hard drive or mobile communications device in the course of its “investigation” is work product and not subject to discovery. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500. (Fed. R. Crim. P. 16(a)(2) (Information Not Subject to Disclosure).) Rule 16(a)(2) creates an untenable situation for the accused when assessing the universe of evidence that may or may not exist that is relevant to the defense of the crimes being alleged. However, CALEA provides a panoply of digital forensics resources for building the government’s case. The lack of accessibility to ESI means the lack of ability to determine the exculpatory nature of certain electronic evidence. (See Brady v. Maryland, 373 U.S. 83 (1963) (holding that evidence in custody of prosecution that would exculpate accused or mitigate guilt must be produced).) In addition, the prosecution’s obligations under Brady are not based on any specific constitutional right an accused has to discovery, but rather on the due process protections afforded in criminal proceedings. (See 2 Charles Alan Wright et al., Federal Practice and Procedure § 254.2 (4th ed. 2009) (quoting United States v. Bagley, 473 U.S. 667, 675 (1985).) A significant—and hotly contested—issue is the ability of criminal defendants to access certain forms of ESI statutorily protected by the Electronic Communications Privacy Act (ECPA), and the Wiretap Statute and Stored Communications Act thereunder. (See 18 U.S.C. §§ 2510 et seq.) For example, there are numerous instances when the prosecution is relying on historical content on a social networking service’s website pertaining to a particu-

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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lar witness. The government also may attempt to rely on the content on a website or a social network that it seeks to attribute to the defendant. The challenge practitioners appear to encounter on a regular basis is how to access either the same or different information (e.g., Web 2.0-based content) that was not pursued by the prosecution for whatever reason or was avoided because it undermines the government’s theory. In criminal proceedings, a defendant must pursue nonparty discovery through Federal Rule of Criminal Procedure 17, which states, in part: (c) Producing Documents and Objects. (1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. Criminal litigation, particularly at the federal level, constricts defendants from obtaining third-party discovery. Not only are defendants reliant upon judicial discretion under Rule 16 for gaining access to ESI in the possession of the government, the accused must also confront an uphill challenge with respect to accessing electronic evidence protected by the Wiretap Statute and Stored Communications Act. Therefore, counsel may elect to focus efforts on pursuing ESI initially seized by the government or otherwise subpoenaed under Rule 16. Given the unification of ESI between relevant data sources, during litigation it will likely become more difficult for the government to justify nonproduction of portions of data (i.e., it does not seem proper for courts to permit the prosecution to introduce electronic evidence as it appears on a computer or cell phone screen and not the underlying data associated with the evidence such as GPS coordinates or other “geo-tagging” ESI associated with digital forensic activity). Alternatively, counsel can pursue a Rule 17 order from the court and enforce its compliance through comity in the jurisdiction where the ESI resides if counsel encounters resistance from the service provider.

Phase 3: Identifying Constitutional Challenges and Moving to Suppress ESI

The government has broad statutory authority to obtain electronic evidence by virtue of the warrant clause contained in the Fourth Amendment to the United States Constitution as well as the statutory privacy laws codi-

fied at 18 U.S.C. §§ 2510–22 (the Wiretap Statute), 18 U.S.C. §§ 2701–12 (the Stored Communications Act), and 18 U.S.C. §§ 3121–27 (the Pen/Trap Statute). (See In re Cablevision Sys. Corp., 158 F. Supp. 2d 644 (D. Md. 2001).) An extremely important aspect when defending criminal matters in today’s environment is determining whether ESI was seized by the government properly or whether there was a common law or statutory violation that would support a motion to suppress the evidence. The following decisions are instructive regarding how criminal defenders should approach ESI when constitutional challenges to the seizure of ESI are so inextricably tied with both common law and statutory authorities. Use of GPS devices to track suspects. United States v. Jones, 132 S. Ct. 945 (2012), involved a federal prosecution of cocaine distribution. The United States Supreme Court held that attaching a GPS device to a motor vehicle to monitor movement constitutes a “search” under the Fourth Amendment. Relying on well-settled US Supreme Court precedent, including Katz v. United States, 389 U.S. 347 (1967), and Alderman v. United States, 394 U. S. 165 (1969), the court highlighted the concern about government trespass upon areas over which citizens have a reasonable expectation of privacy. The reasonable expectation of privacy test supplements the constitutional test of commonlaw trespass on one’s right to be free from such government action. Warrantless search of cell phones. In United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012), federal prosecutors introduced cell phone call histories into evidence at trial, including information related to an overheard telephone conversation with a codefendant who, along with Flores-Lopez, was tried and convicted of drug-related offenses. The Seventh Circuit Court of Appeals held that law enforcement officials may search a criminal suspect’s cell phone without a warrant or concern of violating the Wiretap Statute. While the court acknowledged that the issue leads to unchartered waters as to “whether and when a laptop or desktop computer, tablet, or other type of computer . . . can be searched without a warrant,” the ruling did not define the boundaries of a reasonable cell phone search. (Id. at 804; see 18 U.S.C. §§ 2510–22 (Wiretap Statute); 18 U.S.C. §§ 2701–12 (Stored Communication Act).). In the wake of recent decisions such as Jones and Flores-Lopez, defenders will see a number of interpretations across jurisdictions concerning the subjectivity of privacy in various types of cell phone evidence. A popular form of cell phone evidence is historical cell site location data, and the Massachusetts Superior Court recently held that historical cell tower location data is protected by the Fourth Amendment. In the bank robbery prosecution of Commonwealth v. Pitt, 29 Mass. L. Rptr. 445 (Super. Ct. 2012), the government obtained

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evidence without a warrant that (a) the defendant’s cell phone placed a call three minutes after the bank robbery; and (b) the same cell phone “pinged” off a cell tower physically situated within a quarter mile from the bank allegedly robbed. In Pitt, the trial court suppressed the location-based evidence derived from cell towers inasmuch as a subscriber has a subjective privacy interest in one’s geographical location. Conversely, society as a whole is ready to accept that a subscriber—and therefore the defendant in Pitt—does not have a subjective interest in the calling history maintained by a third-party mobile communications provider. In essence, the average cell phone subscriber is aware from monthly statements that the cell service carriers maintain records of calls made and received, just as banks maintain records of monies deposited and withdrawn. (Id.) Employer-issued texting devices accessed by issuing agency. In City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010), the United States Supreme Court heard argument regarding a civil litigation matter concerning a governmental agency’s ability to access “private” communications contained in government-issued mobile devices (e.g., a two-way pager operated on USA Mobility’s paging network (formerly Arch Wireless)). The court analyzed the “operational realities of the workplace” in order to determine whether a government employee’s constitutional rights are implicated in his or her specific government office. In addition, where a legitimate expectation of privacy is triggered, whether a public employer’s intrusion on the employee’s privacy for noninvestigatory, work-related matters, including internal investigations of misconduct, should be analyzed under a “reasonableness” standard. Irrespective of the technology involved in a particular criminal matter, practitioners should always keep the following three “Maryland” cases in mind for guidance when analyzing the search and seizure of ESI, including whether there may be arguments available to suppress it: Brady v. Maryland, 373 U.S. 83 (1963) (holding that it is unconstitutional for a court to enforce the suppression of evidence that is of an exculpatory nature); Smith v. Maryland, 442 U.S. 735 (1979) (noting that in order to challenge an unjustifiable search and seizure of evidence, the defendant must satisfy the “standing” requirement; counsel must show that the defendant had a legitimate expectation of privacy in the place searched or the item seized); and Maryland v. Garrison, 480 U.S. 79, 84 (1987) (noting that warrant clause of the Fourth Amendment mandates that the government may only seize the defendant’s property (or person) pursuant to a warrant or a well-founded legal exception thereto). The majority of individuals own and regularly use a cell phone, and therefore, this is one of the very first items

seized by law enforcement incident to arrest or pursuant to a search warrant. The measure of a defendant’s expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable. (See Katz v. United States, 389 U.S. 347 (1967).) This two-prong burden is carried by the defendant, and must be rebutted by the government proving reasonableness. (See United States v. Curlin, 638 F.3d 562, 565 (7th Cir. 2011) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)) (noting that search takes place when governmental action infringes upon an individual’s subjective expectation of privacy that society is prepared to consider reasonable).) Courts have permitted the government to utilize cell phone evidence seized under the plain view exception to the exclusionary rule as being a search incident to arrest. (See United States v. Santillan, 571 F. Supp. 2d 1093, 1100–01 (D. Ariz. 2008).) Notably, numerous federal and state courts have held that a warrantless search of an accused’s cell phone incident to an arrest did not violate the Fourth Amendment rights of the accused. (See United States v. Murphy, 552 F.3d 405, 411–12 (4th Cir. 2009); United States v. Finley, 477 F.3d 250, 259–60 (5th Cir. 2007); United States v. Deans, 549 F. Supp. 2d 1085, 1093–94 (D. Minn. 2008); Fawdry v. State, 70 So. 3d 626, 630 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So. 3d 448 (Fla. Dist. Ct. App. 2011); Hawkins v. State, 704 S.E.2d 886, 892 (Ga. Ct. App. 2010).) An important matter to address is whether the client provided consent to search for ESI, and if so, whether law enforcement exceeded the scope of the consent in the course of the investigation. (See In re United States for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. Aug. 22, 2011) (“While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits.”).) Based on the volume of data that can be stored on a smartphone, mobile communication devices are now arguably viewed by society as “computers.” As a result, the expectation of privacy is heightened with respect to what is stored on a handheld. (See United States v. Stierhoff, 477 F. Supp. 2d 423 (D.R.I. 2007) (holding that government exceeded scope of consent for searching defendant’s computer when the arrest was for stalking and files searched without a warrant were not within the scope of consent).) Therefore, ESI residing in plain view on the homes screen of one’s mobile device does not

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Sources of ESI The following list, although not all inclusive, provides a foundation for defense counsel to review with a client potential sources of ESI: • Desktop and/or laptop • E-mail accounts (POP3, IMAP, exchange server, web client) • Nonmobile PDA devices • Paging devices • SMS (text messaging) • MMS (multimedia messaging service such as video and audio files via mobile phone) • Electronic fax services • Hard-line points of access to the Internet (e.g., Internet service providers and wireless routers) • Voicemail services (traditional digital and voiceto-text transcription) • Apple, Windows, BlackBerry, and Chrome devices (including related SIM cards) • GPS units (equipment based vs. subscription based) • Automobile “black boxes” • Smart cards, memory hardware, jump drives, remote hard drives, and backup media • Virtual computer hard drives and other storage or software applications run from the “cloud” (computing services provided off-site through the Internet) • Virtual “file sharing” across the cloud (e.g., FTP) • Everyday household products/services (e.g., locks, security systems, kitchen appliances, etc.) • Social networking and file-sharing media accounts

possess the same subjective expectation of privacy as the ESI residing more deeply within the handheld. The unification of e-mail, voice, text, and social media services all residing on a single handheld device requires a higher level of scrutiny by counsel when evaluating potential suppression of ESI. (See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 980 (C.D. Cal. 2010) (applying Stored Communications Act, 18 U.S.C. §§ 2701–11, to the content residing in a civil plaintiff’s MySpace and Facebook private messaging accounts).) In addition to social media services, both individuals and businesses are subscribing to services that provide the ability to leave voicemails for message recipients via wave or MP3 files. Such file attachments are automatically transmitted via e-mail, and, therefore, it is likely that voicemail recordings maintained by third-party service providers are subject to seizure by the government. (See United States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007) (citing Smith v.

Maryland, 442 U.S. 735 (1979)) (“The Smith line of cases has led federal courts to uniformly conclude that Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other non-content data to which service providers must have access.”).) Irrespective of the ESI at issue, counsel must apply the abovementioned analysis under the Fourth Amendment and/or Wiretap Statute to determine whether a good faith argument for suppression of the subject ESI may be raised. The following list highlights some of the questions that must be considered when preparing to assert a suppression motion for a defendant or opposing a motion to admit by the government: • Was the ESI obtained either pursuant to a search warrant or as a result of gaining consent? • Did the law enforcement agency seizing the evidence follow standard guidelines applicable to cell phone forensics? • If it was seized without a warrant or consent, was the ESI seized pursuant to a well-founded legal exception (e.g., consent, plain view, open field, curtilage, exigency, search incident to lawful arrest, motor vehicle, border/customs, administrative searches, school searches, etc.)? • Is the evidence testimonial in nature and subject to Crawford v. Washington and Melendez-Diaz scrutiny? • Was the information seized the subject of statutory protections or legal privileges (e.g., attorney-client privilege, patient-doctor privileges, or spousal disqualification)? • Was the evidence seized described in the affidavit to the search warrant and within its scope? (See Commonwealth v. McDermott, 864 N.E.2d 471 (Mass. 2007), cert. denied, 552 U.S. 910 (2007) (finding that specification in the warrant for “records” must include computers).) • Is the evidence beyond the scope of a grand jury or administrative subpoena? • Was the evidence obtained from a collateral legal proceeding as a pretext for gaining admissibility in a criminal prosecution? • Was the evidence obtained from a workplace computer owned by a private or public employer? • Does the cell phone evidence contain any additional information that would not have reasonably been discovered inevitably or as a result of an independent source? • Does the evidence contain audio or video information? • Can the government properly authenticate the evidence? The government may support its case with evidence

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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from cell phone providers or the phone itself as long as the evidence was not obtained in violation of the ECPA or the defendant’s Fourth Amendment rights. Suppression arguments are considered on a case-by-case basis. A digital forensics expert should always be consulted to determine whether the method employed by the prosecution to extract the ESI was consistent with standard operational procedures for the search and seizure of electronic evidence. (See Off. Legal Educ. Executive Off. for U.S. Att’ys, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009), available at http://tinyurl.com/ dyhoksj.) The reality is that the government has been relying more on ESI as the central evidence to corroborate its case-in-chief. With the proliferation of social networking websites and feature-packed smartphones at affordable price points, defenders must become and stay extremely well informed as to handling issues involving ESI to ensure that the prosecution’s attempt to rely on ESI is supportable. (See Thomas G. Frongillo & Daniel K. Gelb, It’s Time to Level the Playing Field—The Defense’s Use of Evidence from Social Networking Sites, The Champion, Aug. 2010, at 14.)

Phase 4: Introducing and Excluding Electronic Evidence at Trial and Preserving the Record

A party who intends to move for admission of an electronic record or any other evidence must first authenticate the evidence. However, the burden of proving that the evidence being offered is authentic and unaltered is lower than beyond a reasonable doubt. (See United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007).) Rather, the party offering the evidence need only present foundational predicates under Federal Rule of Evidence 901(a) sufficient to support a finding by the court that the evidence is what it purports to be. One mechanism counsel should employ is the establishment of chain-ofcustody evidence. Therefore, it is important to engage a digital forensics expert independently capable of testifying as to this issue if necessary. (See United States v. Salcido, 506 F.3d 729, 733 (9th Cir. 2007).) Notably, the government has its experts upon whom it will rely. A very informative opinion in the civil litigation context that attracted substantial attention from the legal community regarding the admissibility of records pertaining to ESI is Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 570 (D. Md. 2007) (“Rule 803(3) is particularly useful when trying to admit e-mail, a medium of communication that seems particularly prone to candid, perhaps too-candid, statements of the declarant’s state of mind, feelings, emotions, and motives.”).) Moreover, courts across the country have held that pursuant to Rule 803(6) computer records are admissible as “business records.” (See, e.g.,

Haag v. United States, 485 F.3d 1, 3 (1st Cir. 2007); United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002); United States v. Briscoe, 896 F.2d 1476 (7th Cir. 1990).) Frequently, hardcopy printouts reflecting ESI residing on the computer from which the document was generated are at issue. For example, in a criminal prosecution for fraud, the government may introduce a paper copy of e-mail content allegedly communicated by a witness. The e-mail header information is nonhearsay; however, the statements being attributed to a third-party declarant that are factually in dispute require an adequate foundation before the paper copy is admitted into evidence. Authenticity—and therefore admissibility—of evidence may become more vigorously litigated in the context of social media evidence. Social media postings have become central to many criminal prosecutions because the Internet is now saturated with “Web 2.0” content. Although the subject matter is cutting edge, the evidentiary principles surrounding the treatment of ESI by the court as to admissibility are governed by the authentication protocol contained in Federal Rule of Evidence 104(b). (See Edward J. Imwinkelried, Evidentiary Foundations § 4.02[6] (8th ed.2012)) citing State v. Bell, No. CA2008-05044, 2009 Ohio App. LEXIS 2112 (May 18, 2009); Dockery v. Dockery, No. E2009-01059-COA-R3-CV, 2009 Tenn. App. LEXIS 717 (Oct. 29, 2009).) Counsel must be vigilant so that objections to the introduction of ESI are not waived and the record is preserved for appeal. For example, defense counsel should object if there is a basis for maintaining that the ESI was altered or created by a different party than the witness who the prosecution is relying upon in order to establish authenticity for admission into the trial record. It is advisable for defense counsel to keep a checklist of common objections to admitting ESI and related evidence during trial preparation and at the trial (e.g., failure to establish a foundation, lack of authenticity, not the best evidence, etc.). It is important for counsel to be attuned to the fact that in many instances courts are likely to allow computer-generated documents into evidence when the court believes that the issue before it is the weight of the evidence rather than its admissibility. (See United States v. Safavian, 435 F. Supp. 2d 36, 40–41 (D.D.C. 2006).) Therefore, defense counsel should be facile enough with ESI to attack its reliability. As technology becomes increasingly more sophisticated, so does the digital forensics necessary when deriving the electronic evidence. Defenders must continually build their knowledge base in order to effectively make Daubert motions, especially because methodologies in the area of computer forensics continually evolve and therefore impact the admissibility of the government’s electronic evidence. Notably, law enforcement person-

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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nel are routinely granted more leeway with respect to the subject matters of their testimony, and at times, are perceived as quasi-experts based on “training and experience.” Defense counsel should not accept the government’s assertions at face value. (See Wilder v. State, 991 A.2d 172 (Md. Ct. Spec. App. 2010) (“[T]he trial court abused its discretion by permitting testimony about cellular tower site location without qualifying the State’s witness as an expert.”).) For example, historical cell site evidence can only be admitted through a properly qualified mobile telecommunications expert. In United States v. Colon Osorio, 360 F.3d 48, 52–53 (1st Cir. 2004), the court held that “[t]he line between expert testimony under Fed. R. Evid. 702 (which is subject to the disclosure requirements of Rule 16(a)(1)(G)) and lay opinion testimony under Fed. R. Evid. 701 (which is not subject to Fed. R. Crim. P. 16(a)(1)(G)) is not easy to draw and is not a matter on which we wish to elaborate without more substantial briefing.” In addition to procedural objections under the Federal Rules of Evidence to the improper admission of ESI, counsel may find a suppression argument based upon statutory privacy violations (e.g., Gramm-Leach-Bliley for financial information, HIPAA for private healthcare data, trade secrets or intellectual property subject to protective order status, etc.). It is crucial to determine whether raising these issues at trial through objection or proactively in the form of a motion in limine is a better strategy. Trial strategies are judgment calls to be made on a case-by-case basis. The adjudication of whether the proponent of the ESI being offered witnessed the circum-

stances surrounding its collection and has the right to testify as to what the witness remembers perceiving may make or break the government’s ability to admit ESI into evidence or a criminal defender’s argument to keep it out. (See Imwinkelried, supra, § 4.02[5].) The bottom line for criminal defenders is to always keep in mind that authenticity, proper foundation, hearsay (and its exceptions), statutory authority, and/or constitutional defenses, as well as Daubert challenges, could be the difference between a conviction and an acquittal.

Conclusion

In Olmstead v. United States, 277 U.S. 438 (1928), Justice Louis D. Brandeis stated the following in his dissenting opinion: “Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” Nearly 40 years later in 1967, the US Supreme Court overturned Olmstead with Katz; and an additional 40 years after Katz, United States v. Jones emerged. Criminal defense attorneys across the country will forever be grappling with the manner and purpose to which the prosecution wishes to put to use electronic evidence. Importantly, defendants will be more effectively represented when their counsel are familiar with emerging technologies, the ESI derived therefrom, and the relevant legal authority. Counsel must always bear in mind that evidence important to the government and the defense may be located on the ground, in a car, up in the cloud, or wherever human ingenuity takes us. n

Published in Criminal Justice, Volume 27, Number 2, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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CRIMINAL LAW REPORTER Reproduced with permission from The Criminal Law Reporter, 88 CrL 787, 03/23/2011. Copyright 姝 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

EVIDENCE

A Dilemma for Criminal Defense Attorneys: The Benefit of Pursuing Electronically Stored Information vs. the Detriment of Implicating the Client

BY DANIEL K. GELB

AND

DANIEL B. GARRIE

orton’s Fork’’ describes a set of circumstances where someone must decide between two equally unpleasant alternatives that are diametrically opposed. Criminal defense attorneys regularly find themselves in this dilemma when debating whether to seek electronic evidence from a third-party witness or other information provider that may possess evidence that would otherwise be inaccessible to the defendant. The challenge criminal defense attorneys routinely face in modern-day prosecutions is analyzing the ‘‘cost-benefit analysis’’ of pursuing electronic evidence. In other words, the information that defenders can ascertain from the numerous sources of electronically stored information (ESI) is multifaceted

‘‘M

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and can be very helpful; however, a possible unintended consequence of pursuing the information is implication of the client—even circumstantially. The client may already be a defendant in the government’s case, but if this is not so, the last thing any lawyer wants to do is unintentionally thrust the client into the prosecution’s crosshairs.

Determining Whether To Pursue Electronic Evidence Investigating the role electronic evidence plays in any criminal matter must be a top priority because, whether one is pursuing it or moving to suppress it, ESI can

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2 make or break a defense.1 The important issue counsel must fully analyze is how to most efficiently and discretely investigate ESI’s impact on the defense. The problem is that this must be done without recklessly interjecting the client into either a less desirable posture, or a position where the prosecution associates certain evidence with the defendant as a consequence of counsel’s approach in pursuing the ESI may be highlighting the importance of certain evidence. Therefore, the ‘‘unpleasant’’ alternatives are typically (1) approach the prosecution; or (2) seek leave of the court to approach a third party. In the first instance, approaching the prosecution for discovery of certain electronic evidence could draw unintended attention to the defendant by shedding light on certain evidence not previously brought to the government’s attention.2 Alternatively, seeking leave of the court to issue a subpoena to the custodian of the electronically stored information sought would risk uncovering reciprocal discovery detrimental to the defense.3 In other words, counsel must 1 See State v. Reid, 389 N.J. Super. 563, 914 A.2d 310 (N.J. Super. Ct. App. Div. 2007) aff’d and modified, 194 N.J. 386, 945 A.2d 26 (N.J. 2008) (ruling that subpoena issued by court administrator of municipal court to Internet service provider (ISP) for defendant was invalid because defendant had reasonable expectation of privacy in her ISP account information under state constitution’s prohibition against unreasonable searches and seizures and defendant had reasonable expectation of privacy in ISP subscription). 2 Fisher v. United States, 425 U.S. 391, 410 (1976), illustrates that there are many times—particularly in white collar criminal matters—where the government will issue a grand jury subpoena to the defendant where the ‘‘act of producing’’ such evidence has ‘‘communicative aspects of its own, wholly aside from the contents of the papers produced.’’ 3 See Fed. R. Crim. P. 16(b)(1); see also Elizabeth L. Inglehart, 1-9A Criminal Law Advocacy § 9.01A (‘‘Once the defendant requests from the government documents, photographs, or tangible items under Rule 16(a)(1)(E) or reports of examinations and tests under Rule 16(a)(1)(F), the prosecutor is granted ‘reciprocal discovery.’ The prosecutor may then re-

Daniel K. Gelb is a partner at the trial law firm Gelb & Gelb LLP in Boston and is a member of the advisory board of BNA’s White Collar Crime Report. Mr. Gelb represents clients at both the state and federal levels in white collar and general criminal defense matters, complex civil litigation concentrating in business and securities, arbitration, and regulatory proceedings. He can be reached at dgelb@ gelbgelb.com. Daniel B. Garrie has a B.A. and an M.A. in computer science and is an e-discovery Neutral and Special Master with Alternative Resolution Centers (www.arc4adr.com) and a Senior Managing Partner at FSRDG LLC (www.fsrdg.com), a legal strategy consulting firm. He can be reached at [email protected]. The authors would like to thank Hoda RifaBashjawish for her assistance with the article. The information contained in this article is the viewpoint of the authors and should not be considered legal advice.

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be cognizant of the old adage, ‘‘be careful what you wish for.’’ The initial ESI dilemma counsel must confront is the need to balance the risk of negative information surfacing that may be exploited by the prosecution against the failure to pursue potentially exculpatory evidence. Technology has provided an enormous sense of convenience for society; however, it has, in many ways, created a fourth dimension to the discovery process by expanding the traditional notions of what is ‘‘discoverable’’ through judicial process.4 Since ESI is a term that courts across the country are rapidly intertwining into discovery orders, criminal defense lawyers cannot assume electronic discovery is limited to civil litigation.5 It is crucial for counsel to appreciate the various sources of ESI in criminal matters, especially considering that failure to seek the electronic information could be ineffective assistance of counsel.6 Therefore, practitioners must clearly evaluate where electronic evidence attributable to the defendant may reside and how to mitigate risk when pursuing such evidence. Still, the major caveat is that doing so could inculpate the defendant. When faced with these strategic dilemmas concerning whether and how to pursue ESI in a criminal matter, most practitioners are inclined to refrain from pressing the prosecution for electronic evidence. Counsel may be inclined to avoid pressing the prosecution for electronic evidence, either due to a lack of familiarity with the kind of ESI the government typically considers or out of fear that pursuing such discovery may elicit a negative reaction from the prosecution toward the defendant. However, a particular course of action that may initially seem safest may actually be the most dangerous for the defendant. Given the dynamic nature of ESI, the various locations in which alternate versions of the same information reside, and the judicial process by which it may be acquired, a more thoughtful consideration of counsel’s options is necessary. For example, if counsel moves to suppress telephone numbers and contact information seized from a defendant’s cell phone, he may not succeed.7 Counsel’s intention may have been to raise the issue of text messages received by a third-party witness. However, by so doing counsel reveals to the prosecution a source of evidence it may wish to evaluate out of the context of motion practice. quest inspection of documents, objects, and test results that the defense intends to produce at trial. The defense should weigh the government’s right to reciprocal discovery in deciding whether to make a discovery request.’’). 4 See Cenveo Corp. v. S. Graphic Sys., 2009 WL 4042898 (D. Minn. Nov. 18, 2009) (finding terminology ‘‘Native Format’’ unambiguous and ordering reproduction of electronic documents). 5 See United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) (holding that discovery of ESI in criminal litigation can be born from best practices in civil matters). 6 See Cannedy v. Adams, 2009 WL 3711958 (C.D. Cal. Nov. 4, 2009) (arguing that defense attorney’s failure to investigate and pursue evidence from social networking sites could be ineffective assistance of counsel). 7 In United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008), the actual facts involved the defendant challenging the seizure of telephone numbers and contacts in a cell phone address book following a controlled buy in a drug case. The district court upheld the search and seizure of cell phone memory by the government as incident to a lawful arrest.

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3 It may be possible to subvert Morton’s Fork by finding or creating an exception to the rule. The first step toward that exception is to be knowledgeable of the sources of information. Evidence derived from electronics has been central to nearly all criminal (and civil) litigation because of the affordability and widespread use of, among other technologies, computers and mobile communications. More so than ever before, the general public has accessibility to cell phones and online social networking. Therefore, it is critical for defenders to be familiar with the means by which mobile communication and social networking evidence may be ascertained. It is important to recognize that even at the most basic level this evidence is not limited to the physical hardware the defendant uses, because information thought to have been deleted could be stored in a multitude of places, including the hardware itself or online (e.g., ‘‘the cloud’’). This may mean that, with the assistance of experts, counsel may examine the evidence obtained and determine whether it is corroborative for the defense. Criminal law is unique in this regard. In fact, it is the ability to maintain—and quietly consider—the evidence that increases a counselor’s potential for liability if he or she fails to explore these possibly exculpating methods with the assistance of an expert. Additionally, counsel must be equipped to anticipate the procedural and practical challenges that lie ahead in the pursuit of such evidence, the exact nature of which will be discussed more fully below.8 Defenders who well prepare for the technical, procedural, and practical challenges that await them can readily address issues relating to ESI and use the evidence obtained most effectively. As technology and society’s operations and communications become increasingly intertwined, the possibility of alerting the prosecution is a real threat to any defense. While it is a gamble to alert the prosecution to the importance of certain ESI to a defendant’s case, it is a decision defense counsel must confront. Pursuant to the Communications Assistance for Law Enforcement Act and aspects of the Wiretap Act, mobile communications carriers as well as e-mail and social networking services are becoming exceedingly cooperative with government requests.9 When used with the administrative subpoena power conferred on the government by the Electronic Communications and Privacy Act, the Wiretap Act has resulted in the scales of justice tipping in prosecutors’ favor when it comes to pretrial discovery of ESI.10 More specifically, Section 2703 of ECPA offers five mechanisms that a ‘‘government entity’’ can use to compel a provider to disclose certain kinds of information. These mechanisms, listed here in ascending order of required threshold showing, are (1) a subpoena, (2) a subpoena with prior notice to the subscriber or customer, (3) an ECPA Section 2703(d) court order, (4) an ECPA Section 2703(d) court order with prior notice to the subscriber or customer, and (5) a search warrant.11 8

See Fed. R. Crim. P. 17; Fed. R. Crim. P. 45. The law governing electronic evidence (including mobile communications) in criminal investigations has two primary sources: (1) the statutory privacy laws codified at 18 U.S.C. §§ 2510-22 (the Wiretap Act), 18 U.S.C. §§ 2701-12 (the Electronic Communications Privacy Act) and 18 U.S.C. §§ 3121-27 (the Pen/Trap Statute); and (2) the Fourth Amendment. 10 See 18 U.S.C. § 2701-12. 11 Id. 9

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Using these tools, prosecutors have various options for pursuing ESI, including the ability to petition the court for a search warrant to bypass the notice requirement to a subscriber who may have stored the evidence sought. The variety of options the government has available to seek ESI are greater than those afforded to defense counsel. Notably, counsel is typically relegated to either seeking ESI from the government or its witnesses via a discovery request to the government or a courtendorsed order for a third-party subpoena to be issued to the custodian of the ESI.12 These third parties are usually ISPs, social networking platforms like Facebook or Twitter, cell phone services, etc. that have far greater access to ESI than the average defendant. Furthermore, with very limited exceptions, Fed. R. Crim. P. 16 and 17 require that defense counsel provide notice to the prosecution when seeking ESI in the custody and control of a party other than the defendant.13 As with any other genre of evidence in a criminal case, electronic evidence is part of two main categories of evidence defense counsel should seek from the government. The first category includes potentially harmful evidence that the prosecution intends to offer against the defendant as part of its case-in-chief.14 This evidence may be accessed pursuant to a pretrial discovery request under Fed. R. Crim. P. 16. Fed. R. Crim. P. 16 mandates the prosecution disclose: (1) evidence it intends to use in its case-in-chief; (2) items obtained from the defendant; and (3) relevant written and recorded statements of the defendant. However, the dilemma defenders face when requesting disclosure of certain items of electronic evidence under Rule 16(a)(1)(E) is whether to commit the defendant to providing reciprocal discovery to the government under Rule 16(b)(1)(A).15 The second category includes evidence that is material to the defense and includes evidence that is favorable to the accused with respect to either innocence or leniency of punishment. Defense counsel can request that the government produce items that are ‘‘material to preparing the defense’’ under Rule 16(a)(1)(E).16 Defense counsel should also request that the government produce evidence that is favorable to the defense under Brady v. Maryland and Giglio v. United States.17 This includes evidence that may be exculpatory and extends to issues that may also surface 12 Fed. R. Crim. P. 16 (procedure governing discovery requests); Fed. R. Civ. P. 17 (procedure governing third-party subpoenas). 13 Fed. R. Crim. P. 17(c)(1) states that a subpoena ‘‘may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.’’ 14 See Thomas C. Frongillo and Daniel K. Gelb, ‘‘It’s Time to Level The Playing Field—The Defense’s Use of Evidence From Social Networking Sites,’’ The Champion (National Association of Criminal Defense Lawyers) (Sept. 2010). 15 Id. 16 Id., citing United States v. W.R. Grace, 401 F. Supp. 2d. 1069 (D. Mont. 2005) (the scope of Rule 16 extends beyond items that are in the physical possession of the prosecutor, and the government also must produce information in the possession of the federal agencies). 17 See Brady v. Maryland, 373 U.S. 83 (1963) (addressing evidence in custody of prosecution that would exculpate ac-

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4 when the defendant is forced to challenge whether the prosecution failed to produce impeachment evidence of its witnesses who testify at trial, regardless of good or bad faith.18 In addition to identifying the challenges associated with pursuing electronic evidence, counsel must fulfill his or her obligation to effectively represent the defendant by pursuing all exculpatory evidence without further implicating the client. For example, a white-collar crime defendant may wish to review discovery under the custody and control of the government; however, pursuing such items under Fed. R. Crim. P. 16 may expose the defendant to reciprocal discovery, thereby potentially waiving an act-of-production privilege.19 Alternatively, the evidence request itself may put the prosecution on notice of what information is available to the defense, what the defense considers important, or even the theory the defense may pursue. Therefore, with or without reciprocal discovery, the defense is forced to show its hand well before trial, putting them at a possible disadvantage during any possible plea negotiations or in the prosecutor’s decision to move forward with the government’s case. Another hypothetical dilemma that is becoming routine is the defensive use of social networks to assert an alibi against a violent-crime charge. In these cases, counsel wants to pursue the online social networking profile of a particular witness who the government has identified as one who will testify at trial. The central issue is whether counsel should trust the veracity of the prosecution witness’s representations of content on the social media profile that is no longer publicly available. If counsel does not, he can alert the prosecution that the defendant is seeking the content pursuant to Fed. R. Crim. P. 16 and may resort to a Fed. R. Crim. P. 17 subpoena endorsed by the court.20 If counsel does trust the available evidence, he may fail to locate evidence that could have created some reasonable doubt about the validity of a central piece of evidence. However, if counsel does not trust the evidence with the electronic discovery to corroborate it, prosecutors may find the same evidence since they are fully cognizant of the evidence the defense is seeking. If the prosecution does this and finds evidence that removes all doubt, then it was essentially the defense’s decision that placed the evidence in the government’s possession. This scenario becomes significantly more complicated for counsel in cases with multiple defendants and the possibility of cooperation that will mitigate punishment. In those cases, unique tactical decisions such as whether to cooperate with the prosecution to mitigate a client’s potential sentencing exposure complicates the counsel-defendant relationship.21 Still, counsel must be cognizant of the practicalcused or mitigate guilt); Giglio v. United States, 405 U.S. 150 (1972). 18 Id. 19 See United States v. Doe, 465 U.S. 605, 613 (1984) (holding the act of producing documents would result in testimonial self-incrimination and therefore defendant was not compelled to do so consistent with the Fifth Amendment privilege). 20 See United States v. Kernell, No. 03-CR-142 (E.D. Tenn., March 17, 2010) (granting defendant’s motion to authorize issuance of subpoena under Rule 17(c) for information from web-based messaging boards). 21 See United States v. Preacely, 628 F.3d 72 (2d Cir. 2010) (‘‘The district court should ordinarily begin all sentencing proceedings by correctly calculating the applicable [U.S.] Guide3-23-11

ity of aggressively pursuing certain discovery items and whether such activity may ‘‘push the government’s buttons.’’

Determining the Best Means Of Acquiring Electronic Evidence Another major strategic decision criminal defense attorneys must confront is whether to pursue certain items of electronic evidence. Unfortunately, this decisionmaking process—if it results in the client’s agreement to pursue ESI—does not necessarily result in defense counsel’s acquisition of it. It is therefore necessary to address the what, where, and how of electronic evidence to achieve the best possible outcome. The content itself is highly determinative of the practicability of effectively ascertaining information. The issue of whether the content of an electronic communication is enough to build an aspect of the defense or whether the information behind the content is necessary (i.e., the ‘‘meta data’’) pervades every aspect of electronic discovery.22 To resolve this issue, a defense attorney must develop the ability to pursue ESI without divulging the importance of the context of the evidence being sought in the process. However, to do this thoroughly and successfully, it is crucial that counsel engage the guidance of a digital forensics expert early in the trial process, whenever that is feasible. Failing to do so may result in significant errors, including missing early exculpatory evidence, being unable to question the reliability or even the validity of the prosecution’s evidence, or inadvertently providing the prosecution with evidence. ‘‘Meta data,’’ a type of data that can be extracted from the normally recognizable data, highlights the possible results of failure to consult a technical expert. Because ‘‘meta data’’ is often invisible to the untrained eye, it can easily go unnoticed; however, this is where it is possible to discover some of the most usable information such as times, dates, and deletions. To avoid the common mistakes associated with electronic discovery, it is critical that the expert is involved as early as possible. For example, if an expert is retained when a charge is filed but before the prosecution has started its electronic discovery, she may be able to procure a great deal of the data herself rather than asking the prosecution to release the evidence. From the beginning, a legal technologist will be able to understand what data types will be applicable and useful by integrating her understanding of both the law and the applicable legal standards and the types of data that may be available to fit that need. The expert will then be able to use her expertise to point out likely sources of the information on both the defendant’s hardware and third-party sources as well as where to find the lines range and then consider the statutory sentencing factors’’), citing 18 U.S.C.A. § 3553(a); U.S.S.G. § 1B1.1 et seq. See also U.S.S.G. § 5K1.1 (permitting court to depart from guidelines upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another criminal). 22 See generally U.S. Attorneys Manual, Title 9 (Criminal Division) available at http://www.usdoj.gov/usao/eousa/foia_ reading_room/usam/title9/title9.htm (recommending how federal prosecutors should handle discovery in the course of building a criminal case).

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5 most accessible copy of often duplicative documents. It is important that the expert is retained on a consulting basis unless counsel intends to identify the expert as a testifying witness.23 This ensures that the evidence found while searching ESI cannot be brought into question on the stand in a wholesale manner. If an expert is required to, for example, explain methodology or ensure veracity, that expert should be retained separately from the expert who examines the ESI that is ultimately admitted at trial. Counsel and defendants alike will recognize that this consideration is not simply strategic; as it is an ethical issue for defenders as well. Procuring necessary discovery is not a strategy option that counsel may choose to forgo, as it is an attorney’s duty to effectively defend a case.24 This duty is constitutional and may not be abridged.25 It is arguably more important to adequately defend a criminal case, where the risk to the client can be loss of life or liberty, than a civil case. Once defenders decide what data they are interested in and discern its most accessible location, counsel must request discovery. Assuming the defendant is not the custodian of the data—and absent extraordinary circumstances—the defendant is required to give notice to the custodian associated with the targeted ESI that the subpoena being sought from the court will seek. Unlike the government, defendants have only a few methods to ascertain, let alone review, third-party evidence. Even if counsel is aware of the existence of ESI, it does not necessarily mean that the defendant will receive it. As noted above, the two most prevalent procedural mechanisms defense attorneys employ are discovery requests directed at the government pursuant to Fed. R. Crim. P. 16 and third-party subpoenas under Fed. R. Crim. P. 17. With respect to requesting discovery from the prosecution, Rule 16 dictates that courts review the accessi23 See Fed. R. Crim. P. 16(a)(1)(G) (government’s obligations):

Expert witnesses. At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. See also Fed. R. Crim. P. 16(b)(1)(C) (defendant’s obligations): Expert witnesses. The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if: (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition. This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. 24

See Cannedy v. Adams, supra n. 6.

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U.S. Const., amend. VI.

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bility of evidence on a case-by-case basis. Failure of the government to produce evidence is deemed harmful only if the cumulative negative impact on the defense is substantial.26 This is similar to the reasonableness standard used in civil electronic discovery. However, in civil cases the need is considered against a countervailing reasonableness of production where costs and accessibility of documents are taken into account. Still, an argument can be made that both the criminal and civil rules of discovery were promulgated to avoid the detrimental consequences that may result if a litigant and his or her counsel are unable to examine all relevant evidence—both hard copy and electronic—to ensure that litigants are able to make informed decisions in any given case. This comparison is instructive because it runs parallel to traditional distinctions between the criminal beyond-a-reasonable-doubt standard and the civil law preponderance-of-the-evidence standard. In the pursuit of electronic discovery, criminal law requires that the burden be placed on the defense to show that the cumulative nondisclosure could reasonably alter the outcome of the case; in contrast, in civil cases the requesting party must show that each document cannot be obtained otherwise and would adversely affect its case.27 While the Supreme Court has held that this standard is in line with constitutional requirements of due process, defense counsel must be aware of the practical difficulty of showing that something he may not know exists is necessary for the defense.28 Therefore, counsel must keep very close tabs on the evidence requested from the prosecution, clearly delineating what they are seeking from the ESI so that, in the event the government refuses to comply, the defendant will be able to articulate the impact on the case. Because the foundation of the prosecution’s obligation to produce exculpatory evidence predates the evolution of electronic evidence, the rules are technologically indifferent. Still, there are practical differences, the most important being that electronic evidence is more accessible to prosecutors than to the defense and the defense may not be fully aware of what that evidence is if it is not fully cognizant of how the technology functions. This difference is most obvious when it comes to requests for ESI from third parties. The two prominent reasons for this is that there is a much greater chance for prosecutors to retrieve evidence from third parties, and it is less likely that defendants will be aware of the exact nature of the third-party information that could 26 See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (the analysis of the impact of nondisclosure of exculpatory evidence must take into account the cumulative effect of the nondisclosure, as opposed to the effect of a discrete, item-by-item assessment of the evidence). 27 Id. 28 See United States v. Agurs, 427 U.S. 97, 106-07 (1976) (holding that failure to disclose material and favorable evidence violates due process even when the defendant makes no request for the material); United States v. Bagley, 473 U.S. 667, 682 (1985) (holding that evidence is material if there is a reasonable probability that the disclosure of the evidence would have changed the outcome of the case). See generally OFFICE OF LEGAL EDUCATION OF THE EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS (3d ed. 2009), available at http://www.cybercrime.gov/ssmanual/ ssmanual2009.pdf.

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6 be used against them. While experts can help mitigate the effects of both differences, there is still a great deal of information that the defense cannot necessarily predict. These include a particular witness’s social networking contacts, an ISP address associated with the location from which a certain e-mail account was last accessed, historical cell tower records concerning estimations of geographical location of a cell phone, and so forth. This is also an ethical issue where counsel must fully research and determine industry-acceptable conduct in terms of investigating social networking evidence (e.g., Facebook, Twitter, LinkedIn, MySpace, Plaxo, etc.) or any other ESI. Notably, both counsel and an investigator—who is an agent for the defense—must never engage in impersonation of a witness or any other unethical conduct that will compromise a defense.

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When counsel takes care to consider the possible content, location, and sources of ESI as well as the various methods that can be used to acquire it, it becomes clear that requesting electronic discovery will be, more likely than not, an important decision that can change the course of the case. Using experts trained in digital forensics best practices in order to help counsel meet these demands is not only efficient and effective but also ethically responsible. Ultimately, the ‘‘Morton’s Fork’’ of criminal electronic discovery is a case-by-case analysis; however, where the prosecution is using electronic evidence and the defendant has any notion that there is electronic evidence that could influence the outcome, it is absolutely necessary to take steps to understand this information fully or risk facing a claim that the client was not effectively assisted in mounting a defense.

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DIGITAL DISCOVERY & E-EVIDENCE! VOL. 8, NO. 4

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APRIL 1, 2008

Reproduced with permission from Digital Discovery & e-Evidence, Vol. 08, No. 04, 04/01/2008, pp. 84-87. Copyright 姝 2008 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

CRIMINAL PROCEDURE

Litigating Criminal Procedure Issues When ‘ESI’ is the Subject of ‘CSI’ BY DANIEL K. GELB, ESQUIRE riminal defense lawyers are as obligated as their brethren on the civil side to become conversant with e-discovery and electronically stored information (ESI). The proliferation of telecommunications, e-mail, the Internet, electronic faxing, and digital voicemail has redefined both the meaning of ‘‘relevant evidence’’ and how such evidence should be obtained, preserved, and produced. All of the aforementioned mediums of communication contain ESI which could significantly impact the outcome of your clients’ cases,

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Daniel K. Gelb, Esquire is an associate with Gelb & Gelb LLP in Boston. He is chair of the Massachusetts Bar Association Civil Litigation Section’s E-Discovery Practice Group, a member of the National Association of Criminal Defense Lawyers’ E-Discovery Task Force and The Sedona Conference’s Working Group on Electronic Document Retention & Production. Gelb is also an Advisory Board Member of BNA, Inc.’s White Collar Crime Report. The opinions and analyses contained herein are that of the author only and should not be interpreted as legal advice.

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regardless of whether the litigation context is civil or criminal.1 A defense attorney’s improper handling of e-discovery and its corresponding ESI could fatally prejudice a client’s defense. Over the last several years, both federal and state level prosecutors have developed a stronger understanding of the ways in which electronic evidence may be subject to discovery in criminal litigation.2 There are many statutes at both the federal and state levels that demand attorneys have an understanding of e-discovery.3Moreover, the use of the Inter1 U.S. v. O’Keefe, —- F. Supp.2d ——, 2008 WL 449729 (D.D.C., Feb 18, 2008) (addressing the impact of the evolution of e-discovery in civil litigation on criminal litigation matters). 2 Jason Scott, Understanding E-mail: A Primer For Local Prosecutors, American Prosecutors Research Institute (August 2005). 3 See Xiaomin Huang et. al., American Criminal Law Review, Georgetown University Law Center, Vol. 44, No. 2 (Spring 2007) (discussing various examples of federal and state laws prohibiting criminal conduct involving electronic evidence, e.g., National Information Infrastructure Protection Act of 1996, 18 U.S.C. § 1030 (including computers used in interstate commerce or communications, i.e., a computer with a connection to the Internet as being ‘‘protected’’); Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701-7713 (controlling inappropriate

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2 net has become so inextricably tied tothe manner in which society interacts that it has become a setting in which the government can gain evidence to build its case. Previously, at the federal level, law enforcement could not obtain a wiretap order to intercept wire communications (those involving the human voice) for violations of the Computer Fraud and Abuse Act under 18 U.S.C. § 1030. However, Section 202 of the USA Patriot Act of 2001 amended 18 U.S.C. § 2516(1) by adding the felony violations of 18 U.S.C. § 1030 to the list of predicate offenses providing a means for law enforcement to obtain a wiretap order.4 Statutes addressing the importance of electronic evidence fall into areas in addition to wiretap and communication mediums. The government has the statutory authority to pursue ESI through subpoenas, search warrants, and court orders, and as a result, it is crucial for defense counsel to be aware of a party’s legal obligation to preserve ESI. For example, codified within Sarbanes-Oxley are document destruction offenses making it unlawful to tamper with or destroy the integrity or availability of the use of electronic evidence in an official proceeding, or to obstruct the investigation or administration of any matter within the jurisdiction of the United States.5 Improper handling of e-discovery and ESI by defense counsel—even if the matter is pre-information or indictment—could adversely affect a client’s defense, and possibly result in counsel becoming a target of obstruction of justice charges for impeding the government from seizing ESI.6

Authority. The federal government has broad statutory authority it can leverage to obtain electronic evidence to corroborate a criminal prosecution. ‘‘The law of governing electronic evidence in criminal investigations has two primary sources: the Fourth Amendment to the U.S. Constitution, and the statutory privacy laws codified at 18 U.S.C. §§ 2510-22 [The Wiretap Statute], 18 U.S.C. §§ 2701-12 [Electronic Communications Privacy Act (‘‘ECPA’’)], and 18 U.S.C. §§ 3121-27 [The Pen/ Trap Statute].’’7 email solicitations by enacting a national standard); Copyright Infringement Act and No Electronic Theft Act, 17 U.S.C. § 506(a) (criminal copyright infringement)); Child Pornography Prevention Act of 1996 and Child Online Protection Act of 1998, 18 U.S.C. 2252 and 47 U.S.C. § 231 (criminalizing online distribution of materials harmful to minors). 4 Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001. http://www.usdoj.gov/criminal/cybercrime/ PatriotAct.htm 5 See 18 U.S.C. §§ 1512(c), 1519. 6 See In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006) (relying on 18 U.S.C. § 1519, the prosecution sought evidence pursuant to the crime-fraud exception where counsel had possibly aided a Grand Jury target in destroying emails on the company’s information system). 7 U.S. v. Perrine, —- F.3d ——, 2008 WL 638687 (10th Cir. 2008) (suppression was not an available remedy for violations of ECPA and comparable Pennsylvania law in a case of prosecution for possession of child pornography); seealso.Searching and Seizing Computers Obtaining Electronic Evidence in Criminal Investigations. Computer Crime & Intellectual Property Section, United States Department of Justice (http:// www.cybercrime.gov/s&smanual2002.htm) (July 2002, p. 5). 4-1-08

Understanding your client’s computer systems, including how they operate, is essential for analyzing the legality of the protocol used by the government when ESI is seized pursuant to a search or warrant, consent, or an exception to the exclusionary rule. The ECPA does not provide for suppression of evidence for violation of the statute, and therefore, it is important that attorneys, especially those dealing with larger companies, understand the methods by which their clients communicate electronically in order to determine what ESI should be produced to the government in the course of an investigation.8

Defendants’ Access. Additionally, a criminal defendant should have access to any information the government intends to introduce against the defendant in its case in chief. A defendant’s access to the government’s evidence may vary between the federal level and among the various jurisdictions at the state level. Criminal defense counsel must approach the client’s ESI by developing an expertise in handling issues regarding e-discovery and relevant forms of ESI in order to level the playing field with the government’s investigators and prosecutors. It is also imperative for counsel to determine whether exculpatory evidence exists in electronic form, even from third parties, to ensure a client’s constitutional rights are protected—regardless of whether e-discovery is central or collateral to the charges.9 It is always crucial to determine whether a defendant has a viable suppression motion.10 Therefore, defense counsel must look at the totality of the circumstances surrounding the government’s search and seizure of computer hardware, software, and electronic files, as well as any related ESI. As with any search warrant, counsel should analyze the scope of the warrant and particularity of the description of things to be seized. Appropriate Defense Challenges. In the context of computer files and electronic evidence, counsel should challenge broad-sweeping search warrants of computer hardware, software, and electronic files. Whether analyzing a search warrant targeting tangible objects or ESI, particularity is essential ‘‘. . . [to ensure] that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.’’11 Defense counsel should be as circumspect about the search of a client’s computer and files contained therein as counsel would be about the search of a client’s home 8 See U.S. v. Councilman, 418 F.3d 67, 79 (1st Cir. 2005) (discussing, among other issues related to e-mail, the Electronic Communications Privacy Act and the Stored Communications Act, finding an interception of e-mail to be violative of the Wiretap Act, the U.S. First Circuit Court of Appeals held ‘‘. . .that the term ‘electronic communication’ includes transient electronic storage that is intrinsic to the communication process for such communications. That conclusion is consistent with our precedent.’’) 9 See Brady v. Maryland, 373 U.S. 83 (1963) (‘‘We agree with the Court of Appeals that suppression of this confession was a violation of the Due Process Clause of the Fourteenth Amendment.’’) 10 State v. Reid, 2007 WL 135685 (N.J. Super. Ct. App. Div. 2007) (defendant had reasonable expectation of privacy in internet service provider subscription). 11 Maryland v. Garrison, 480 U.S. 79, 84 (1987) (discussing the Warrant Clause of the Fourth Amendment).

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3 or automobile. It is important to be are beginning to appreciate the searches of computer data, and are government to seize the hardware site.12

mindful that courts burden of on-site thus permitting the and relocate it off-

Third Parties. A significant challenge that the defense bar faces is whether ESI the government acquires through third parties is supressible.13 Traditionally, third-party consent to search has been another avenue defense counsel could assert in order to challenge whether standing to consent existed. Criminal defendants, like everyone else, are part of a society which now heavily relies on third-party technology service providers. For example, most people have e-mail. Criminal defense attorneys should therefore be aware that pursuant to federal or state statue, federal or state grand jury or trial subpoena, and an 18 U.S.C. § 2703(d) order or a search warrant, the government can obtain information such as: names, addresses, local long distance telephone connection records or records of session times and durations, length of service (including start date) and types of services utilized, telephone or instrument number or other subscriber number or identity including any temporarily assigned network address, and means and sources of payment for services (including credit card or bank account numbers).14 Defense counsel should be aware that pursuant to the ECPA, a cable service operator that offers Internet services to its subscribers or customers need not first notify customers of the existence of an order to produce ESI, although provisions of Cable Communications Policy Act require notification to customers.15 The government is interested in searching ESI because it is likely to contain a greater quantity and variety of information than any previous storage method.16 12 U.S. v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008) (government’s affidavits were premised on the advice of computer specialists who anticipated that certain intermingled evidence might be difficult to separate on-site). 13 See United States v. Conte, 2004 WL 2988567 (N.D. Cal. Dec. 28, 2004) (government search warrant to seize e-mails from Yahoo! and AOL accounts found permissible since warrant was tailored to discover communications restricted to financial matters and performance enhancing drugs); seealso United States v. Bailey, 272 F.Supp2d 822 (D. Neb. 2003) (finding employer had clear e-mail monitoring policy, the Court upheld seizure of contents—pursuant to subpoena—of defendant’s email account at his place of employment by employer which were submitted to FBI). 14 Searching and Seizing Computers Obtaining Electronic Evidence in Criminal Investigations. Computer Crime & Intellectual Property Section, United States Department of Justice (http://www.cybercrime.gov/s&smanual2002.htm) (July 2002, Appendix E). 15 In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(D) Directed to Cablevision Systems Corp. 111 Stewart Avenue Bethpage, New York 11714, 158 F. Supp.2d 144 (D.C. MD, Aug. 10, 2001). 16 See United States v. Stierhoff, 2007 WL 763984 (D. RI, Mar. 13, 2007) (government exceeded scope of consent searching defendant’s computer where the arrest was for stalking and the information encountered on the computer hard drive was evidence of an ‘‘offshore’’ file opened by investigator without a warrant).

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Issues to Consider In Preparing for Motions to Suppress s Was the ESI obtained either pursuant to a search warrant or as a result of gaining consent? s If it was seized without a warrant or consent, was the ESI seized pursuant to a wellfounded legal exception? s Can the electronic evidence be considered testimonial? s Was the information seized the subject of statutory protection (e.g., HIPPA, SarbanesOxley and Graham-Leach Bliley)? s Was the ESI seized described in the affidavit to the search warrant and within its scope? Was the evidence obtained from a workplace computer owned by an employer or a personal computer in one’s home? s Does the evidence contain audio or video information?

Motions to Supress. It is likely that motions to suppress ESI recovered by the government will be pursuant to the Fourth Amendment. The United States Supreme Court in Florida v. Jimeno, 500 U.S. 248, 250 (1991) stated that ‘‘[t]he touchstone of the Fourth Amendment is reasonableness.’’ Therefore, in order to challenge the search and seizure of ESI under the Fourth Amendment, counsel must show that the defendant had a legitimate expectation of privacy in the place searched or the item seized.17 Criminal defense attorneys must understand the kind of electronic evidence that is involved in their cases, and the characteristics of the e-discovery the government is seeking to introduce in its prosecution. The various forms of ESI can be retrieved in several ways. The location and method by which ESI is retrieved will bear on the level of intrusion employed by the government (e.g., search warrant, consent, Warrant Clause exception such as exigent circumstances, etc.). The actual protocol the government used to retrieve a client’s ESI will help defense counsel determine the chain of custody for the e-discovery, and whether the seizure of the information was consistent with so called ‘‘standard operating procedures’’ in similar cases. Attorneys usually do not have the technical expertise to navigate these emerging issues, and therefore, they should consider retaining a third-party digital forensics expert as well as other vendors in the e-discovery industry to assist them. Methodology. The method the government utilizes to retrieve ESI is just as important to a defense as the information itself. It is essential to determine whether the evidence was seized through mirroring (copying) a hard drive, if digital forensic software was employed to retrieve evidence, and the physical aspects of the location where the ESI was kept. For example, it should be determined whether incriminating ESI was acquired through deleted files in a client’s computer hard drive or active files that are readily accessible by the average computer user. Know17

See Smith v. Maryland, 442 U.S. 735 (1979) BNA

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4 ing the source of the e-discovery the government is using to corroborate a criminal prosecution may be as critical to building the defense as are the other issues in the case. It is also prudent to determine the form of the ESI seized. By learning the characteristics of the various forms of e-discovery (e.g. metadata), counsel will have greater knowledge of the traits associated with variations of ESI and be better prepared for a suppression motion as well as motions in limine before trial.

Container Analogies. In United States v. Meade, 408 F. 3d, 14, 23 (1st Cir. 2005), the court stated that ‘‘[a]lthough a person generally has an expectation of privacy in items he places in a closed container, some containers so betray their contents as to abrogate any such expectation.’’18 In Meade, the police accompanied a restraining order complainant to her home to retrieve personal items. When they received information from the complainant that the defendant kept firearms in the apartment, the police ran a criminal history and discovered that the defendant did not have a license to carry firearms and was a convicted felon, prohibiting him from lawfully possessing firearms. When they seized a gun from the defendant, the police also seized an ammunition can. The court denied the defendant’s motion to suppress the firearm because the case in which the gun was kept was labeled ‘‘GUN GUARD.’’ The label on the case coupled with the fact that the defendant was a convicted felon made it permissible for the police to seize the firearm. The label on the case showed no expectation of privacy concerning the items contained within it. The court noted that the defendant did not move to suppress the grenades found in the ammunition can, and therefore, the contraband seized was not before the court on appeal. The court in United States v. Stierhoff, citing Meade, found a difference when a file was labeled ‘‘offshore’’ because this label was not inherently descriptive of the contents of the file. Therefore, it is clear from the court’s approach in Stierhoff that the physical characteristics of evidence, including the electronic characteristics associated with it, bear significantly on whether the government lawfully acquired the ESI. Range of Evidence. The spectrum of electronic evidence does not end with computer hard drives and files contained therein. United States v. Smith was an har18 Citing United States v. Huffhines, 967 F.2d 314, 319 (9th Cir. 1992)

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binger of the emerging area of ‘‘audio electronic discovery’’ such as voicemail which the courts are beginning to scrutinize.19 In Smith, during an insider trading prosecution, the court held that the defendant’s voicemail which disclosed his stock trading intentions and knowledge of insider information was admissible despite being illegally acquired from an employee of the organization who hacked into the defendant’s account. It is important for criminal defense attorneys to recognize that audio communication is not strictly limited to land-lines, cell phones, and their respective voicemail systems. The emergence of ‘‘voice-over-internet protocol’’ and the growing popularity of transmitting voicemail in digital formats demand an even higher level of vigilance by defense counsel. Individuals as well as corporations are subscribing to services that provide the ability to leave voicemails for recipients via ‘‘wave’’ or ‘‘mp3’’ files attached to an email. Therefore, it is likely that voicemail recordings are maintained by third-party service providers.20 It is essential for counsel to be familiar with voicemail as a communication medium because, as discussed above, the government can subpoena e-mail documents from independent service providers, and will likely be able to do so with respect to other digitally-based communication services such as ‘‘electronic facsimiles’’ and ‘‘web conferencing.’’ Notably, as a result of the publicity regarding the traps inherent in using e-mail, people are more frequently employing other means of electronic communications (e.g. voicemail) in their attempts to avoid detection. The foregoing discussion is only a surface overview of the roles e-discovery and ESI play in defending criminal prosecutions. Criminal defense attorneys, on both the state and federal levels, must be able to go head-tohead with the government in the arena of electronic evidence in order to identify relevant evidence to a client’s case and handle such evidence appropriately. Importantly, defense counsel must stay current with the many legal and technical developments in the rapidly growing and changing field of electronic discovery. 19

United States v. Smith, 155 F.3d 1051 (9th Cir. 1988) cert. denied, Smith v. United States, 525 U.S. 1071 (1999) 20 See U.S. v. D’Andrea 497 F. Supp.2d 117, 119 (D. Ma. July 20, 2007) citing Smith v. Maryland, 442 U.S. 735 (1979) (‘‘. . .Smith line of cases has led federal courts to uniformly conclude that internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other non-content data to which service providers must have access.’’ D’Andrea acknowledges a differing approach than State v. Reid, supra).

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DIGITAL DISCOVERY & E-EVIDENCE! VOL. 7, NO. 10

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OCTOBER 1, 2007

Reproduced with permission from Digital Discovery & e-Evidence, Vol. 07, No. 10, 10/01/2007, pp. 214-216. Copyright 姝 2007 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

FEDERAL RULES

Understanding the E-discovery Obligations Before Making a Certification BY DANIEL K. GELB itigators are placing greater focus on electronic discovery (e-discovery) of electronically stored information (ESI), as a result of the amendments to the Federal Rules of Civil Procedure (Fed.R.Civ.P) which are now guiding the courts and litigants.1 Ac-

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1 Rule 16 (Pre-Trial Conferences; Scheduling; Management); Rule 26 (General Provisions Governing Discovery; Duty

Daniel K. Gelb, Esquire is an associate with Gelb & Gelb LLP in Boston, MA where he represents clients in litigation and regulatory proceedings in business and securities and criminal defense matters. He is chair of the Massachusetts Bar Association Civil Litigation Section’s E-discoveryPractice Group, a member of the National Association of Criminal Defense Lawyers’ E-discoveryTask Force, and The Sedona Conference’s Working Group on Electronic Document Retention & Production. Mr. Gelb is also an Advisory Board Member of BNA, Inc.’s White Collar Crime Report. The opinions and analyses contained herein are that of the author only and should not be interpreted as legal advice.

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cording to the United States Supreme Court, the recent amendments which took effect on December 1, 2006 ‘‘. . .govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.’’2

Case Law. During the last several years, lawyers were guided principally by case law, most notably the Zubulake line of cases.3 The Zubulake cases are extremely

of Disclosure); Rule 33 (Interrogatories to Parties); Rule 34 (Production of Documents, ESI, and Things and Entry Upon Land for Inspection and Other Purposes); Rule 37 (Failure to Make Disclosures or Cooperate in Discovery; Sanctions); and Rule 45 (Subpoenas). Form 35 (Report of Parties’ Planning Meeting) amends the discovery plan to include the handling of the disclosure or discovery of ESI and claims of assertion of privilege or protection as trial preparation material after production. 2 ‘‘Amendments to the Federal Rules of Civil Procedure’’ found at http://www.supremecourtus.gov/orders/courtorders/ frcv06p.pdf and athttp://ddee.bna.com under ‘‘Proposed & Enacted Rules.’’ 3 Zubulake v. UBS Warburg LLC (Zubulake I’’), 217 F.R.D. 309 (S.D.N.Y., May 13, 2003) (addressing the legal standard for determining the cost allocation for producing e-mails contained on backup tapes); Zubulake v. UBS Warburg LLC (‘‘Zubulake II’’), 2003 WL 21087136 (S.D.N.Y., May 13, 2003) (concerning issue not involving e-discovery); Zubulake v. UBS Warburg LLC (‘‘Zubulake III’’), 216 F.R.D. 280 (S.D.N.Y., July

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2 informative, and make unequivocally clear that a major area of discovery peril is the spoliation of electronic evidence, which can be fatal to a litigant’s case.4 The United States Supreme Court has held that courts possess the inherent power to sanction litigants where appropriate, and are not confined to the rules of procedure.5 Sanctions may be imposed where a party allows evidence to be destroyed in contravention of the good faith provision incorporated into recently amended Fed. R. Civ. P. 37. However, Fed.R.Civ.P. 37 is not the only mechanism for sanctions within the civil rules of procedure. Pursuant to Fed.R.Civ.P. 26(g)(3), a Court may sanction a party where the offending counsel is leveraging the complexity of the e-discovery process by responding to discovery obligations in an effort to impede opposing counsel.

Additional Authority. The recently amended rules address the importance of handling e-discovery with diligence at the Federal level, and resources such as The Sedona Principles provide practical guidance on how to handle ESI.6 In addition, at the state level, state court trial judges are guided (but not bound) by The National Center for State Courts’ Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information (‘‘Guidelines’’) approved by the Conference of Chief Justices (‘‘CCJ’’) in August 2006.7 The CCJ’s approval of the Guidelines is the product of the deliberation of issues relating to e-discovery at the state court level nationwide.8 Notably, like the Zubulake cases, the Guidelines also reference The Sedona Principles.9 24, 2003) (allocating backup tape restoration costs between plaintiff and defendant); Zubulake v. UBS Warburg LLC (‘‘Zubulake IV’’), 220 F.R.D. 212 (S.D.N.Y., October 22, 2003) (ordering sanctions against defendant for violating its duty to preserve evidence); and Zubulake v. UBS Warburg LLC (‘‘Zubulake V’’), 2004 WL 1620866 (S.D.N.Y., July 20, 2004) (explaining, among other issues, counsel’s duty to effectively communicate to her client its discovery obligations to ensure information is discovered, retained, and produced). 4 See Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. 502003CA005045XXOCAI, 2005 WL 679071, at*7 (Fla. Cir. Ct. Mar. 1, 2005) rev’d on other grounds sub nom. Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings,Inc., —- So.2d ——, 2007 WL 837221 (Fla. App. 4 Dist. March 21, 2007). 5 See Chambers v. NASCO, Inc., 501 U.S. 32 (1997)(holding that sanctions available under the Federal Rules of Civil Procedure do not displace or supersede the inherent power of a court to sanction bad faith conduct). 6 The Sedona Principles, Second Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (The Sedona Conference威 Working Group Series, 2007). 7 The Conference of Chief Justices, Guidelines for State Courts Regarding Discovery of Electronically Stored Information (Aug. 2006), available at http://www.ncsconline.org/WC/ Publications/CS_ElDiscCCJGuidelines.pdf. 8 Note that The National Conference of Commissioners on Uniform State Laws (authors of several uniform laws such as the Uniform Commercial Code) has also established a Drafting Committee On Uniform Rules Relating to the Discovery of Electronically Stored Information. 9 See generally The Conference of Chief Justices, Guidelines for State Courts Regarding Discovery of Electronically Stored Information (Aug. 2006).

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With the advent of Zubulake and Morgan Stanley, Fed.R.Civ.P. 37 received significant attention when the issue of ‘‘bad faith’’ in discovery practices was considered. With ESI language being added to Fed.R.Civ.P. 33 and 34, Fed.R.Civ.P. 26(f) and 16 have also attracted the attention of practitioners, as these particular amendments impact how pre-trial conferences and the exchange of ESI is handled between litigants during initial disclosures pursuant to Fed.R.Civ.P. 26(a)(1). It is imprudent for attorneys to approach ESI as just another form of documents. Failure to recognize the obligations attendant to e-discovery could result in a bad faith certification of a discovery response or objection which might be sanctionable pursuant to Fed.R.Civ.P. 26(g)(3). 10

New Obligations. E-discovery is a growing and dynamic part of the process of pre-trial exchange of information. Because the discovery of electronic evidence has become central to litigators as businesses and individuals routinely communicate by e-mail, voicemail, electronic facsimiles, cell phones, PDAs, and many other media that retain ESI, counsel’s obligations to certify accurately the identification, preservation, and production of ESI has been heightened. With the emergence of automated litigation support resources, algorithmic document review, and digital forensics, e-discovery has become a multifaceted endeavor. Counsel must be familiar not only with the federal rules governing e-discovery, but with the proper procedures for handling the ESI itself. Therefore, particularly in disputes involving large corporations and/or multiple parties, it is unreasonable for counsel to engage in willfully blind discovery certification. It is perilous for counsel to represent to an opposing party by way of a discovery response or objection that discovery of all ESI is complete without fully exploring every location where potentially relevant ESI might reside. One of the annotations to Fed.R.Civ.P. 26(g) states that ‘‘[counsel’s] duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11.’’ Bad Faith. If counsel has knowledge that not all discovery avenues have been exhausted, or even worse, that opposing counsel could discover the ESI by other means, a concern arises that counsel may be engaging in bad faith discovery practices in order to interpose delay.11 Recently in an opinion addressing, among other 10 Fed.R.Civ.P. 26(g)(3) states that ‘‘[i]f without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee’’ (emphasis added). 11 See Fed.R.Civ.P. 26, Advisory Committee Notes on Subdivision (g): ‘‘If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discov-

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3 issues, sanctions pursuant to Fed.R.Civ.P. 26(g), the United States District Court for the District of Colorado stated that ‘‘ ‘[b]ad faith’ is the antithesis of good faith and has been defined in the cases to be when a thing is done dishonestly and not merely negligently. It is also defined as that which imports a dishonest purpose and implies wrongdoing or some motive of self-interest.’’ This can include counsel’s failure to properly oversee the discovery process where such behavior rises to the level of interfering with the integrity of the judicial process.12

Applicability at Summary Judgment. A context in which a Fed.R.Civ.P. 26(g) violation could surface is in the summary judgment phase. For example, in Scott v. Metropolitan Health Corp., the Sixth Circuit Court of Appeals held that the District Court properly imposed sanctions against the plaintiff pursuant to Fed.R.Civ.P. 26(g), 56(g) and the Court’s inherent powers.13 In Scott, the Court stated the following when justifying the District Court’s imposition of sanctions due to Scott’s conduct during summary judgment pursuant to Fed.R.Civ.P. 56(g) for filing a misleading affidavit and 26(g) for inaccurately certifying the production of meeting minute tapes where the discovery Scott turned over was in fact incomplete: The district court did not clearly err in finding that Scott submitted discovery filings that falsely certified that they were believed to be complete and accurate, in violation of Rule 26(g)(1) and (2). Nobody could know better than Scott whether she had all three tapes of the meeting. That was flatly within her knowledge, and it was not clear error to find that Scott knew she was lying when her initial disclosures and later responses certified that she had not ‘‘found’’ all of them. Once the court found that Scott violated Rule 26, it was obligated to impose sanctions under Rule 26(g)(3) (emphasis in original).

Crucial Decisions. The management of e-discovery preservation and production can be an extremely challenging task since the scope of the project may expand rapidly. Therefore, it is crucial for counsel to recognize the importance of accurately certifying discovery responses. Litigants are mandated by the rules not to sign a discovery response in bad faith. In fact, Fed.R.Civ.P. 26(g)(1) states that ‘‘[e]very disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party’s address. The signature of the attorney or party constitutes a certification that to the best of the ery are governed by Rule 11. However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g).’’ 12 Cache La Poudre Feeds, LLC v. Land O Lakes, Inc., slip copy, 2007 WL 6840001, *24 (D. Colo., March 2, 2007) citing Danis v. USN Communications, Inc., 200 WL 1694325 (N.D. Ill. 2000) (imposing monetary sanctions where defendant’s failure to implement adequate steps to discharge all discovery duties properly resulting in purging of emails to ensure that potentially discoverable documents were preserved). 13 Scott v. Metropolitan Health Corp., 2007 WL 1028853 (6th Cir. 2007) (unpublished slip copy but properly cited pursuant to F.R.A.P. 32.1(a)).

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signer’s knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.’’ (emphasis added). Counsel should not use the complexity of e-discovery as a means of engaging in conduct which is directed to creating obstacles to delay the proceedings.14 After opinions such as Zubulake and Morgan Stanley, litigators became increasingly aware of the courts’ ability to impose dispositive sanctions such as a default judgment, adverse inference, or a summary judgment ruling as well as monetary sanctions under Fed.R.Civ.P. 26(g).15 Counsel should be cognizant of the fact that a court is not required to find ‘‘bad faith’’ in order to impose sanctions pursuant to Fed.R.Civ.P. 26(g)(3) if, without substantial justification, a discovery certification is made in violation of Fed.R.Civ.P. 26(g).16 If it has a reasonable basis to believe that a party has engaged in improper discovery tactics, a court has the authority to impose sanctions pursuant to Fed.R.Civ.P. 26(g) sua sponte.17 Whether the context is pre-trial discovery, summary judgment or trial, it is the Court’s role to determine ultimately what information is relevant and reasonably calculated to lead to the discovery of admissible evidence. As a predicate to the Court’s decision, counsel, as an officer of the Court, is obligated to accurately certify a discovery response or objection in good faith. Counsel’s e-discovery due diligence extends to the production of ESI and not merely the preservation of it.

Continuing Challenges. As technology advances, fulfilling counsel’s obligations to preserve and produce ESI will become even more challenging. Counsel must be vigilant so that E-discoverydoes not result in a trap for the unwary. When following the amended rules of civil procedure counsel should bear in mind that it is well-settled law that if a violation of Rule 26(g) occurs without substantial justification, the imposition of sanctions is mandatory upon the Court to correct such disobedience.18 14 See Starlight International Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999) (interposing delay in judicial proceeding to amount attorney’s fees is tantamount to prejudicing an opposing party’s case). 15 See National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987) 16 See St. Paul Reinsurance Co., Ltd. V. Commerical Financial Corp., 198 F.R.D. 508 (N. D. Iowa 2000) (‘‘The Advisory Committee Notes explain that ‘‘Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 2637. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to . . . evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. . .’’). 17 Id. 18 Cache La Poudre Feeds, LLC v. Land O Lakes, Inc., (slip copy) 2007 WL 6840001, *24 (D. Colo., March 2, 2007) citing Danis v. USN Communications, Inc., 200 WL 1694325 (N.D. Ill. 2000) citing Gucci America, Inc. v. Costco Wholesale Corp., 2003 WL 21018832 (S.D.N.Y. 2003); Washington v. City of Detroit, slip copy, 2007 WL 603379 (E.D.Mich., February 22, 2007) (Court upheld Magistrate Judge’s order for sanctions pursuant to Fed.R.Civ.P. 26(g) where offending counsel violated discovery order without ‘‘substantial justification.’’).

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Reproduced with permission from White Collar Crime Report, Vol. 1, No. 24, 12/22/2006, pp. 784-788. Copyright 姝 2006 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

I N T E R N A L I N V E S T I G AT I O N S

Avoiding Pitfalls When Conducting Corporate Internal Investigations BY GERARD T. LEONE JR., ESQ., RICHARD M. GELB, ESQ., AND DANIEL K. GELB, ESQ. utside counsel typically conduct internal corporate investigations with the expectation that producing the information gathered to a government agency will gain the advantages of cooperation. Attorneys conducting internal corporate investigations should embrace a cautious and ethical approach including protocols that adopt the best practices for the given situation. This article highlights certain areas that can be problematic if attorneys fail to handle the investigation properly at either the federal or state level. The authors of this article are practitioners in the Commonwealth of Massachusetts, and have used cases from that jurisdiction for illustrative purposes. The

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Gerard T. Leone Jr. is the senior managing director & regional counsel for Vance International Inc., a Garda Company, and is the District Attorney-elect for Middlesex County, Mass. Richard M. Gelb is a partner and Daniel K. Gelb is an associate with the Boston law firm of Gelb & Gelb LLP. Daniel K. Gelb is a former Assistant District Attorney for the Norfolk County, Mass., District Attorney’s Office. The information contained in this article is not intended as any form of legal advice and reflects only the opinions of the authors and not any federal or state governmental agency.

principles discussed in this article generally should be applicable in all jurisdictions. However, the authors caution each attorney to examine the law of his or her own jurisdiction before advising clients.

The Context of Corporate Prosecution Since 2002 the Department of Justice obtained more than 1,000 corporate fraud convictions and convicted more than 160 corporate presidents and executive officers.1 Therefore, it is readily apparent that the government can, and will, choose to prosecute the corporate entity, its employees, or both. Accordingly, an attorney conducting an internal investigation by gathering information from the corporation’s employees must be cognizant of the ethical obligations surrounding the disclosure of conflicts and multiple representation. Unlike Massachusetts, some jurisdictions recognize a ‘‘self-critical analysis’’ privilege, meaning an organization’s investigation and reports remain confidential.2 However, claims of privilege are not favored in Massachusetts, where the principle that the public has ‘‘a right to every man’s evidence,’’ on the whole, has been 1 Statement of the Department of Justice’s Deputy Attorney General Paul J. McNulty before the Senate Judiciary Committee regarding ‘‘The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations.’’ (Sept. 12, 2006). (http://www.usdoj.gov/dag/testimony/2006/ 091206dagmcnulty_testimony_thompson_memo.htm). 2 Harris-Lewis v. Mudge, 9 Mass.L.Rptr. 572, 1999 WL 98589, *2-*3 (Mass. Super.) (Fremont-Smith, J.)

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2 preferred to countervailing interests and ‘‘privileges are exceptional.’’3 Moreover, ‘‘[t]o the extent that an internal corporate investigation is made by management itself, there is no attorney-client privilege.’’4

The Conflict Disclosure Pitfall During the Investigation Actual conflicts arise where it is patently obvious that the attorney and the corporation or its agents have competing interests. The U.S. Supreme Court has found that the attorney-client privilege is held by the corporate entity, not the individual employees. Therefore, attorneys should be aware that employees and other agents of the corporate entity need to know that any information gathered in the interview might be disclosed at the discretion of the corporation.5 Actual and perceived conflicts of interest should be well understood, and properly disclosed. It is well-settled law in Massachusetts that the attorney-client relationship is fiduciary in nature.6 Whether one is in-house counsel or outside counsel who has been retained by a corporation, practitioners owe a fiduciary duty to their client and are governed by the Massachusetts Rules of Professional Conduct (MRPC). The American Bar Association Model Rules of Professional Conduct (MR) are also instructive. Thus, for example, the attorney should determine as a threshold matter whether she is so involved in the transaction that is the subject of the investigation that the lack of independence could adversely affect the corporation when negotiating with the government. MRPC 1.7(b) states ‘‘[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.’’7 When conducting an internal investigation, an attorney must always be conscious of disclosure requirements. There are many times where an officer, director, or employee of a corporation is interviewed by an attorney or her investigator. The duty of loyalty is to the client, and therefore, the attorney must always ensure her client is readily identifiable and the client’s interests are paramount. A comment to MRCP 1.7 relative to client loyalty states that ‘‘[l]oyalty to a client is also impaired when a lawyer cannot consider, recommend or carry 3 Id. at *3 citing Cronin v. Strayer, 392 Mass. 525, 532-33 (1984) 4 Rhodes v. AIG Domestic Claims Inc., 20 Mass.L.Rptr. 491, 2006 WL 307911 (2006) (Mass. Super.) (Gants, J.), citing In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir. 1979). 5 See Upjohn v. United States, 449 U.S. 383 (1981); see also Levine v. Marshall, 1997 WL 416581 (Mass. Super. 1997) (King, J.) (Massachusetts Superior Court order on motion to quash defendant’s motion to quash deposition testimony). 6 See Hendrickson v. Sears, 365 Mass. 83, 90, 310 N.E.2d 131, 135 (1974) (attorneys owe their clients a fiduciary duty due to the nature of their service as their clients’ counsel and legal representative). 7 MRPC 1.7(b).

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out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client.’’8 MRPC 1.7(b) is particularly important in determining how to proceed with an internal corporate investigation. When a situation arises where a corporation has to investigate itself internally, the in-house counsel’s representation of the corporation may be ‘‘materially limited . . . by the lawyer’s own interests’’ (particularly if a lawyer occupies a position on the board of directors).9 Therefore, by seeking out independent outside counsel to conduct the investigation, the in-house counsel will avoid both actual and perceived potential conflicts. Perceived conflicts are those that are not necessarily apparent, but that can surface on a case-by-case basis. The relationships between participants involved in internal investigations can be complex, and it is important to delineate exactly which players are maintaining which roles during the course of the investigation. It is crucial to keep in mind that corporate counsel represents the corporate entity and not its individual shareholders, officers, directors, or employees.10 The relationships between these parties can be confused without a careful approach. The MRPC, specifically Rules 1.7 and 1.13 (as well as MR 1.7 and 1.13), make it clear that when an attorney is dealing with an organization’s employee and it is apparent that the organization’s interests are adverse to those of that employee, the attorney is obligated to clarify the identity of her client.11

The Multiple Representation And Anticipatory Conflict Pitfalls ‘‘Multiple’’ or ‘‘joint’’ representation can complicate and seriously interfere with the integrity of an investigation. The attorney (and her investigator) should caution an employee-interviewee as to duty of loyalty, attorney-client privilege, and indemnification, among other issues, prior to being interviewed.12 The multiple representation conflict can arise when an attorney represents an organization and its employees, and the employees seek to shift the wrongdoing to the organization’s other representatives. Conversely, the corporation may try to avoid liability by shifting the blame to individual officers, directors, or employees.13 A multiple representation conflict can surface when an attor8

MRPC 1.7, comment [4]. MRPC 1.7(b); see also Charles W. Wolfram, Modern Legal Ethics (West Publishing Co., 1986), § 8.3.3, p. 424 (discussing the conflicts in the director-counsel roles); see also ABA Formal Opinion 98-410 (‘‘Lawyers serving as directors have the same obligation as other lawyers to maintain confidentiality and avoid compromising the attorney-client privilege of the corporation.’’). 10 See Cacciola v. Nellhaus, 49 Mass.App.Ct. 746, 733 N.E.2d 133 (2000), citing Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., 107 Mich. App. 509, 309 N.W.2d 645 (1981). 11 Edwards v. Mass. Bay Trans. Authority, 12 Mass.L.Rptr. 395, 2000 WL 1786326, *5 (Mass. Super.) (Gants, J.) (citing MRPC 1.13 and 1.7) 12 See Brad D. Brian & Barry F. McNeil, Internal Corporate Investigations (American Bar Association, 2nd ed., 2003), Ch. 6, pp. 191-197. 13 See Charles W. Wolfram, Modern Legal Ethics (West Publishing Co., 1986), § 7.3.3, p. 354 (providing the example 9

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3 ney in a shareholder derivative action represents both the corporation and its individual officers and directors accused of wrongdoing against the corporation.14 Therefore, if an attorney fails to address the multiple representation conflict, the integrity of the informationgathering process may be significantly compromised. Attorneys may attempt to avoid conflicts through use of ‘‘future’’ or ‘‘anticipatory’’ waivers. ABA MR 1.7(b) addresses the circumstances under which a lawyer may undertake or continue to represent a client relying upon the client’s ‘‘informed consent’’ to a conflict.15 ‘‘New Comment [22]’’ under ABA MR 1.7 notes that ‘‘[w]hether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b) [of Model Rule 1.7]. The effectiveness of such waivers generally is determined by the extent to which the client reasonably understands the material risks that the waiver entails.’’16 The attorney must be cognizant of whether the interviewee is represented by separate counsel, has prior legal knowledge, and whether the subject matter of the interview is ‘‘substantially related’’ to her corporate client’s matter.17 Informed consent to waive a future conflict of interest in a matter is permissible only if: (1) the nature of the future conflict is one that may be consented to; (2) it is reduced to writing; (3) the client’s confidential information remains protected pursuant to MR 1.6; and (4) the attorney’s involvement with the future matter is consistent with MR 1.7(b) and MR 1.9.18 As discussed above, conflict disclosure is a significant concern from the outset of the investigation. Therefore, an attorney conducting an investigation could engage in unethical conduct should she seek an anticipatory waiver of conflict from an employee-interviewee where the attorney should know that such future conflict could never be waived.19 Moreover, an agreement with the employee that a future conflict is waived may be unenforceable depending on the facts of the case. Lastly, counsel should proceed cautiously, bearing in mind that all clients may be entitled to share information. An attorney who is conducting an internal investigation with parties who are not represented by different counsel can easily encounter a duty of loyalty dilemma. Common representation can further complicate the investigation. For example, when an attorney serving multiple clients obtains information during her investigation and is asked by one of the clients to disclose that information to him, the client may be entitled to the information unless there is an agreement to the contrary.20 for such a conflict but in the context of a municipality/ employee relationship in a federal civil rights case). 14 Id. at p. 426 (explaining that ‘‘[t]he requirement of separate representation is produced by a conflict of interests, not by the mere filing of any shareholder derivative action, regardless of the nature of its claims.’’). 15 See ABA Formal Opinion 05-436 (May 11, 2005), pp. 2-4 (officially withdrawing ABA Formal Opinion 93-372 in its entirety). 16 Id. at p. 2. 17 Id. at p. 4. 18 Id. at pp. 4-5. 19 See ABA MR 1.7(b) and accompanying Comments. 20 See ABA MR 1.7, Comments [26]-[33]. WHITE COLLAR CRIME REPORT

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Privilege Pitfalls in the Attorney-Investigator Agency Relationship The law of attorney-client privilege and the workproduct doctrine is well-settled.21 Typically, internal investigations are initiated either in anticipation of inquiry into a corporate matter or in response to a government administrative or grand jury subpoena. Therefore, it is essential that the attorney recognize that the manner in which an investigator recovers information may determine whether the information can be protected by a legal privilege or discoverable by the government or an opposing litigant. When conducting an internal investigation of a corporation, an attorney should be wary that the investigator is in many ways an extension of the attorney, potentially creating an agency relationship.22 Therefore, the attorney needs to be aware of what her investigator is doing, because unlike an expert witness retained by counsel, the investigator is arguably the attorney’s agent.23 For example, the attorney may retain an independent investigation firm to assist in conducting the investigation. The investigator’s work product should be protected if he is acting by and through the attorney. The agency relationship is typically determined by a ‘‘right of control’’ test: the attorney retains the right to direct the investigator’s services in its particulars.24 Therefore, an attorney should acknowledge that she maintains a close relationship with the investigator, and is likely to control the means by which the investigator is conducting the investigation.25 Should the attorney lose control of her investigator, she may be held liable for the investigator’s conduct.26 For example, if the attorney gives the investigator unsupervised discretion and the investigator violates the privacy rules of the Gramm-Leach-Bliley Act, the officer, director, or employee who is being investigated may seek redress. Should the attorney not properly evaluate the conduct of her investigator, the negligent conduct of the investigator could be imputed to the attorney.27 An investigator who is not properly instructed in handling sensitive corporate proprietary information could inadvertently cause a disclosure of confidential business information that might have been protected had the investigator 21

Upjohn Co. v. United States, 449 U.S. 383 (1981). See Restatement (Second) of Agency, § 1. See also Kirkpatrick v. Boston Mutual Life Ins. Co., 393 Mass. 640, 645, 473 N.E.2d 173, 176 (1985) (citing Restatement (Second) of Agency § 1 stating an agency ‘‘results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control.’’); Theos & Sons Inc. v. Mack Trucks Inc., 431 Mass. 736, 729 N.E.2d 1113 (2000). 23 See Moriearty, et al. Massachusetts Practice Series: Employment Law, 45 Mass. Prac., Employment Law § 6.2 (2nd ed.) (2005). 24 Id. citing Dilaveris v. W.T. Rich Co. Inc., 424 Mass. 9, 11 (1996). 25 Cowan v. Eastern Racing Ass’n, 330 Mass 135 (1953) (the test of an employment relationship is the right to control). 26 See Restatement (Second) of Agency § 387 (1958) (‘‘Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency.’’) 27 See Alperin & Shubow, Massachusetts Practice Series, 14C Mass. Prac., Summary Of Basic Law § 20.281 (3rd ed.) (2005). 22

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4 been made aware.28 Additionally, the attorney should ensure that what is recovered pursuant to the internal investigation is done in a manner that protects the record should the organization be criminally prosecuted on either the federal or the state level.29 Note that ‘‘[t]he crime-fraud exception to the attorney-client privilege applies in essentially the same form to the work product doctrine, particularly in the grand jury context.’’30 The issue of future discoverability of information gathered during an internal investigation is particularly pertinent in the context of the ‘‘common interest privilege’’ inherent in the joint defense agreement. ‘‘In order for the common interest exception to apply, ‘the party asserting the privilege must show that (1) the communications were made in the course of a joint defense effort; (2) the statements were designed to further the effort; and (3) the privilege has not been waived.’ ’’31 The JDA concept was designed to prevent waiver of the attorney-client privilege when ‘‘discrete parties face the same legal claim,’’ making it essential for an attorney to identify whether the parties providing information are retained by independent counsel, and whether a common legal interest exists and has been explicitly communicated to all parties involved.32 It is not necessary for a JDA to be reduced to writing to be enforceable, but it is strongly recommended to ensure the terms are clear to all involved. The various legal relationships involved among the parties to an internal corporate investigation may dictate the discoverability of information during the course of an investigation and at its completion. This issue is increasingly pertinent when an organization potentially faces both civil and criminal litigation in federal or state court.33 At the federal level, a criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the government’s witnesses before they have testified. In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it appears ‘‘reasonably calculated 28 See Hon. P. Lauriat, et al., Massachusetts Practice Series, 49 Mass. Prac., Discovery § 3.5 (2006) (discussing the ‘‘growing tendency by judges of the Superior Court to scrutinize more closely requests to protect confidential business information’’), citing Sigel v. Flatley, 12 Mass.L.Rptr. 33, 2000 WL 1100187 (Mass. Super. 2000) (Agnes, J.); St. Paul Fire & Marine Ins. Co. v. Goguen, 13 Mass.L.Rptr. 527, 2001 WL 1174139 (Mass. Super. 2001) (Brassard, J.) 29 See Fed. R. Crim. P. 16(b)(2) and Mass. R. Crim. P. 14 30 See In re Grand Jury Subpoena, 220 F.R.D. 130, 151-52 (D. Mass. 2004). See In re Grand Jury Subpoena generally for the applicability of the crime-fraud exception to the attorneyclient privilege and work-product doctrine; see also MRPC 1.6. 31 Ken’s Food Inc. v. Ken’s Steak House Inc., 213 F.R.D. 89, 93 (D. Mass. 2002), citing United States v. Bay State Ambulance and Hosp. Rental Serv. Inc., 874 F.2d 20, 28 (1st Cir. 1989). 32 See Rhodes v. AIG Domestic Claims Inc., 20 Mass.L.Rptr. 491, 2006 WL 307911 (Mass. Super.) (Gants, J.); see also AMCA Intern. Corp. v. Phipard, 107 F.R.D. 39, 40 (D. Mass. 1985) (general or limited waiver of the attorney-client privilege ‘‘turns on the particular circumstances in which the disclosure was made and the purpose for the disclosure.’’). 33 See Beale, et al., Grand Jury Law and Practice § 10:5 (2nd ed.) (discussing the use of civil cases to obtain criminal discovery).

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to lead to the discovery of admissible evidence.’’ 34 At the state level, a criminal defendant in Massachusetts is entitled to rather broad pre-trial discovery, including statements and reports by Commonwealth witnesses. In a civil case, as at the federal level, a party is entitled to discovery of any information sought if it appears ‘‘reasonably calculated to lead to the discovery of admissible evidence.’’35 Therefore, before an attorney instructs her investigator to initiate the process, she must know which parties may acquire what information in both the civil and criminal contexts. The attorney should be aware of whether any future potential legal matters are sufficiently related to the one under investigation, particularly where an expert witness is retained to assist in the investigation.36

Avoiding Obstruction of Justice Pitfalls And Spoliation of Electronic Discovery Effective Dec. 1, Rules 16, 26, 33, 34, 37, 45, and Form 35 of the Federal Rules of Civil Procedure were amended to incorporate new rules of ‘‘Electronic Discovery.’’ Although these rules apply at the federal level, the protocols the rules adopt are instructive for practice at the state level. The reality is that organizations that potentially have thousands of employees generate millions of pages of documents every year.37 In addition to document production rates, corporate America has also become reliant upon electronic forms of communication. An internal investigation that gathers information in this environment can be a liability minefield for an attorney who has not ensured that her client and her investigator, as well as the attorney herself, are fully aware of the importance of evidence retention in order to avoid spoliation.38 ‘‘Knowingly’’ failing to retain documentary and/or electronic evidence could rise to the level of obstruction of justice.39 The attorney should take proactive measures to educate her client and investigator about the liability associated with tampering and reckless spoliation of evidence.40 The internal investigation team should be conscious of the ‘‘reasonableness stan34 See Degen v. United States, 517 U.S. 820 (1980) (comparing Fed. R. Crim. P. 16(a)(2) and 26.2 with Fed. R. Civ. P. 26(b)(1)). For the purposes of this article, Degan is cited for comparing Fed. R. Crim. P. 16(a)(2) and 26.2 with Fed. R. Civ. P. 26(b)(1). For exceptions regarding witness statements not subject to disclosure under Fed. R. Crim. P. 16(a)(2), see 18 U.S.C. § 3500. In addition, see Fed R. Crim. P. 16 generally regarding witness statements made when an organizational defendant is involved. 35 Compare Mass. R. Crim P. 14 with Mass. R. Civ. P. 26. 36 See In re Polymedica Corp. Securities Litigation, 235 F.R.D. 28 (D. Mass. 2006). 37 Charles R. Kellner & Paul M. Robertson, Massachusetts Discovery Practice, Vol. II, Ch. 20: Electronic Discovery (MCLE Inc., 2005). 38 Charles Ragan, et al., The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (The Sedona Conference威 Working Group Series, September 2005), pp. 7-9. 39 See Arthur Andersen LLP v. United States, 544 U.S. 696, 708 (2005) (remanded on other grounds due to a flawed jury instruction). 40 See United States v. Aguilar, 515 U.S. 593 (1995).

COPYRIGHT 姝 2006 BY THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C.

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5 dard’’ relative to evidence preservation, including documents, e-mails, backup tapes, and metadata.41 Litigation hold notices should be sent companywide, and the information technology department should be instructed to override normal destruction procedures.42 It is the attorney’s responsibility (whether it be on her own or with in-house counsel) to coordinate her corporate client’s discovery effort.43 During a legal process, knowingly failing to address evidence preservation could potentially result in criminal prosecution for obstructing justice.44

Conclusion: Building an Investigative Protocol The attorney should formulate a plan at the outset for conducting the corporation’s internal investigation. The attorney cannot guarantee perfection, but she can present an investigation protocol that addresses the key issues. Companies assisting attorneys in internal inves41 See generally George L. Paul & Bruce H. Nearon, The Discovery Revolution (American Bar Association, 2006), Ch. 3. 42 Charles Ragan, et al., The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (The Sedona Conference威 Working Group Series, September 2005), pp. 42-50 (citing Cf. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 2004 WL 1620866 (S.D.N.Y. 2004)). 43 See Stephen F. Gates, et al., Successful Partnering Between Inside and Outside Counsel, § 81:5 (citing Cf. Zubulake v. UBS Warburg LLC in discussing the implementation of a legal hold during an effective electronic discovery process). 44 See 18 USC §§ 1512(c), 1519. See also Ralph F. Boyd & Andrew E. Lelling, Massachusetts Discovery Practice, Vol. I, Ch. 5: Conducting Internal Investigations (MCLE Inc., 2002) (discussing, among other topics, ‘‘federal and most state laws recognize the ‘responsible corporate officer’ doctrine. Under this doctrine, the government can prosecute any managementlevel employee—for example, any officer, director, or supervisor—who actively aids and abets wrongdoing or who knew, or should have known, that such unlawful conduct was occurring.’’). Also note that the crime-fraud exception to the attorney-client privilege may come into play as in In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006).

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tigations are continually developing best practices. Therefore, attorneys should study leaders in the industry in order to develop an investigation outline that ‘‘determine[s] which individuals are best suited for this function, their roles, who they report to, and whether their report should be written or oral. In that regard it is advisable to reduce to writing any guidelines and procedures.’’45 Upon reviewing her investigation protocol, the attorney should develop a comprehensive roadmap addressing certain factors. First, it is essential for the attorney to focus on a multidisciplinary team approach that adheres to industry best practices, federal and state laws, regulations, and guidelines. In addition, as previously discussed, the attorney should coordinate with the investigator to ensure there are no actual or perceived conflicts prior to initiating the investigation. The attorney-client privilege and the work-product doctrine should be protected by the attorney and her investigator. Federal and state statutory guidelines should be at the center, not the perimeter, in planning an internal investigation. Whether it is the Sarbanes-Oxley Act of 2002, the Gramm-Leach-Bliley Act, the Drivers Protection Privacy Act, the Bank Secrecy Act/Right to Financial Privacy Act, the Fair Credit Practices Act, or other laws geared toward protecting the integrity of information, the attorney must advise her investigator to adhere to these statutes at all times. Conducting the internal investigation with the utmost integrity and ethical standards is paramount. The attorney must ensure that the investigation of her client does not place any party in the position of obtaining evidence improperly, and must always adhere to the applicable rules of professional conduct. The attorney-client relationship is one that is firmly established and the attorney-investigator relationship should be well understood. Operating within these parameters should not be compromised. 45 Androphy, J. White Collar Crime, 1 White Collar Crime § 3:27 (2nd ed.) (2006).

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The Business Magazine For The Chief Legal Officer

corpcounsel.com • December 2008 SPECIAL SPONSOR SUPPLEMENT

Federal Rule of Evidence 502: 21st Century Evidentiary Privilege Daniel K. Gelb, Esq. Gelb and Gelb LLP

he amendments to the Federal Rules of Civil Procedure (“FRCP”), effective December 1, 2006, made electronic discovery (“e-discovery”) a central issue in all litigations. The federal judiciary recognized that e-discovery imposed significant time and cost demands on the parties and the courts. For example, FRCP 34 allows “electronically stored information” (“ESI”) such as e-mail, text messaging, and word processing to be discovered in any civil proceeding, if relevant.

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These types of ESI contain hidden information (e.g. metadata and embedded edits) which is not readily apparent to the casual reviewer and poses disclosure risks to the producing party. Such information may include ESI which may be protected by the attorney-client privilege and work product doctrine and is generally more difficult to screen than hard copy documents. In response to this and other concerns the Courts proposed and the President signed into evidence Rule 502 of the Federal Rules of Evidence (“FRE 502”) which relates to waiver of the attorney-client and work-product privilege to ESI that has been disclosed after a “reasonable” screening was conducted by the disclosing party. FRE 502 addresses how courts should handle a party’s inadvertent disclosure of ESI that may contain attorney-client or work product doctrine material, and whether such disclosures are admissible in collateral proceedings involving third parties in subsequent legal proceedings. A Brief Overview of FRE 502 As the Chairperson for the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Committee”), Judge Lee H. Rosenthal authored the written proposal supporting FRE 502. The Committee’s proposal was submitted to the Judiciary Committees for both the House of Representatives and the Senate. See www.uscourts.gov/rules/Hill_Letter_re_EV_502.pdf (available on October 10, 2008).

According to the Committee, FRE 502 not only provides various protections for litigants at the federal level against the perils of inadvertent disclosure of privileged communications, it also: (1) Eliminates “automatic” subject matter waiver, except in extremely unusual circumstances; (2) Clarifies the consequences of inadvertent disclosure; (3) Limits the consequences of the inadvertent disclosure of an otherwise privileged document in a prior state court action; and (4) Allows parties to limit costs of preproduction privilege review by entering into clawback agreements which will protect against the consequences of inadvertent disclosure. Keeping these benefits of FRE 502 in mind, the essential components of FRE 502 are as follows: • 502(a): If a court determines that a party waived the attorneyclient privilege by disclosing information or communications,the waiver will only apply to the information disclosed unless the holder of the privilege intentionally produced the privileged information or communication in a misleading manner; • 502(b): The inadvertent disclosure of privileged information or communication during a federal proceeding will not result in a broader subject matter waiver if the holder of the privilege inadvertently disclosed the information or communication and took reaI - A - 30 sonable steps to prevent disclosure and rectify the error;

December 2008

• 502(c): Disclosure of privileged information or communication in a state court proceeding will not operate as a broader subject matter waiver of the attorney-client privilege in a subsequent federal proceeding if the disclosure does not constitute a waiver under FRE 502 or is not a waiver under the law of the state where the disclosure occurred; • 502(d): If a federal court enters an order that the disclosure of documents containing privileged information or communication does not constitute a broader subject matter waiver, that order is enforceable against any party in a subsequent federal or state court proceeding (if there is a conflict between federal and state law governing privilege in a subsequent litigation, FRE 502 provides that the court in that proceeding must apply state law concerning privilege if it is broader than the coverage provided by FRE 502); and • 502(e): Parties may enter into a agreement protecting against subject matter waiver should there be an inadvertent disclosure of privileged information or communication in a federal court proceeding. Litigants must bear in mind that under FRE 502(e) it will likely be a best practice to ensure that all known non-parties are incorporated into an agreement (or order) contemplated by FRE 502(d) and (e), and they should sign the agreement before any information or documents are made available to them. FRE 502 applies in both private and governmental proceedings, and therefore, parties must take proactive measures to incorporate all necessary issues into the Rule 502 protocol for the litigation in order to avoid the Catch-22 dilemma presented in the pre-FRE 502 arena. See, Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

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‘non-waiver’ agreements presently may be growing and if the proposed changes to the discovery rules are adopted they can be expected to increase significantly - - they certainly are not risk-free.” The Hopson decision is the e-discovery corollary to the well known “Hobson’s Choice” because a party to litigation must balance the desire to reduce costs of e-discovery with the desire to protect privileged documents and communications. Parties may agree to a clawback provision; however, the fear of privilege waiver remained pre-FRE 502s. FRE 502, as enacted, provides for protection against inadvertent waiver of the attorney-client privilege by mere production of ESI, if the party used “reasonable” methods to screen for protected ESI. In any event, the strongest survival tip to mitigate the pitfalls of inadvertent disclosure is proactively to have protocols in place to screen for privileged and protected documents and information. Taking reasonable and timely measures is the best insurance. See also, Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841 (D. Md. May 29, 2008) (same Court revisited the privilege waiver concerns at the heart of Hopson and issued a decision over the “reasonableness” of search methodologies in protecting attorney-client protected ESI against inadvertent disclosure).

n any event, the strongest survival tip to mitigate the pitfalls of inadvertent disclosure is proactively to have protocols in place to screen for privileged and protected documents and information.

Avoiding The Hopson Dilemma Hopson concerned plaintiffs asserting putative class claims and individual claims against the City of Baltimore and the Baltimore City Police Department alleging racial discrimination against African-American police officers in connection with the administration of the disciplinary system for Baltimore police officers. The plaintiffs in the action sought a wide range of ESI concerning the treatment of class members in the litigation. Hopson soon became a seminal case concerning the role “privilege waiver” may play in non-related future litigation. The opinion forewarned litigants of the risks of so-called “quick peek” and “clawback” agreements. The Court stated, “[a]lthough the use of

Daniel K. Gelb, Esquire is with Gelb & Gelb LLP in Boston. He is chair of the Massachusetts Bar Association Civil Litigation Section’s E-Discovery Practice Group, a member of the National Association of Criminal Defense Lawyers’ E-Discovery Task Force and The Sedona Conference’s Working Group on Electronic Document

FRE 502: FORWARD LOOKING FRE 502 will provide various immediate benefits. First, a uniform rule on the waiver of attorney-client privilege and work product protection as a result of inadvertent disclosure to another party has been codified in the federal court system. Second, parties (particularly corporate entities) will likely find federal court a more favorable venue when a case involves a significant volume of ESI. Third, litigants make decisions based upon their assessments of the predictability of case outcomes and the costs of proceedings, and FRE 502 gives solace when missteps may occur in the area of inadvertent disclosure of ESI. However, counsel must bear in mind that FRE 502 is a federal evidentiary rule which may be of guidance in state court litigation and governmental regulatory and administration proceedings (and self regulatory organization proceedings), but will not provide complete protection. Lastly, FRE 502 does not afford immunity from civil and/or criminal prosecution by federal or state governmental agencies where parties have entered into a private agreement between themselves and with third parties. In any event, FRE 502 addresses an important issue in the increasingly growing complex area of e-discovery.

Retention & Production. Mr. Gelb is also an Advisory Board Member of BNA, Inc.’s White Collar Crime Report. The opinions and analyses contained herein are that of the author only and should not be interpreted as legal advice.

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Reprinted with permission from the December 2008 edition of The Corporate Counsel © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact 800.888.8300 or [email protected]. ALM is now Incisive Media, www.incisivemedia.com. # 016-12-08-0001

POTENTIAL SOURCES OF ELECTRONIC EVIDENCE DERIVED FROM THE MODERN MOTOR VEHICLE* By Daniel K. Gelb, Esq. GELB & GELB LLP

(1) Rear-view safety camera; (2) infra-red safety/blind-spot prevention systems

Wireless router/broadband "hotspot" has ECPA/Wiretap and SCA implications; subscriber agreement may betray such rights through waiver or consent to use of cloud-based subscription media services or software with terms of privacy independent from manufacturer of vehicle (e.g., Android, iTunes, Blackberry, etc.); point of interest data could reside on a hard drive embedded in the vehicle or streamed remotely; first-response and vehicle theft prevention (e.g., OnStar, LoJack, etc.) may also give rise to privacy waiver/consent to search depending on facts of case and usage of technology.

Personal Belongings/Accessories That Can Associate Individual to Vehicle: Prepaid/pay-as-you-go traffic, parking and/or highway toll devices (e.g., E- ZPass®. Sun Pass®, online/kiosk parking payment, etc.) Credit cards with embedded RFID technology in magnetic strip Occupant's mobile phone with location/push subscription enabled for geographical, navigational, retail, and/or social media purpose(s) Ignition interlocking device(s) (where applicable)

Examples of standard/required computer hardware which may be installed by manufacturer. (Note: Access to inside the vehicle compartments typically required to retrieve data (warrant may be required): "Black Box" Digital storage devices (e.g., odometer, certain dashboard hardware) Digital/Satellite radio components (e.g., satellite radio) Dealership installed VIN tracking system (usually on leased vehicles for insurance) Airbag deployment system; chip-embedded key activation; remote start-up; security/theft-prevention systems

Some vehicles have features where items in storage are configured with dashboard computer hardware like other aspects of the car (e.g., spare tire pressure; gas and oil levels; multizone A/C functions, etc.)

Programmable seating Heated seating Weight detection/child safety features Seat belt/safety

Radio Frequency Identification (" RFID") device embedded in tire by manufacturer

Examples of optional tracking capabilities of computer hardware installed by manufacturer. Since data is accessible from sources outside of the vehicle, customer may waive 4th Amendment right to privacy via consent when taking title to vehicle at point of purchase: Navigation/GPS/location-based data (real-time and historical) Emergency/first response subscription services (e.g., OnStar) Security/theft prevention services (e.g., LoJack) Wireless broadband/hot-spot services (e.g., WiFi router) (see above) Certain bluetooth capabilities (e.g., hands-free cell phone use, etc.) Mobile content synchronization/cloud computing Mobile video camera/audio devices linked to emergency response/security service

Cell phone/mobile media integration linking to occupant (operator or passenger) to vehicle: Subscription-based GPS service (Potential consent given by individual subscriber) Social media applications providing location of subscriber 911/Emergency services and access by first-responders Bluetooth compatibility/pairing with hardware in vehicle

How Is ESI in Vehicle Accessed?: Consent/Waiver - express or implied permission through terms ouse/subscription agreement Search Warrant - 4 Corners: probable cause; detached judicial officer; reliable Exception to Exclusionary Rule - motor vehicle, reasonable suspicion; articulated facts of crime + exigency; wingspan, etc. Wiretap Order (ECPA) Administrative Subpoena CALE Act Compliance

*THE ABOVE TEXT WAS AUTHORED BY DANIEL K. GELB, ESQUIRE OF GELB & GELB LLP (www.gelbgelb.com) AND IS FOR EDUCATIONAL PURPOSES ONLY. THE ABOVE DIAGRAM IS NOT ALL INCLUSIVE AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. EACH CASE HAS UNIQUE EVIDENCE AND A FORENSICS EXPERT SHOULD BE RETAINED.

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for understanding cell phone evidence in order to substantiate a client’s defense or to suppress or rebut the prosecution’s case.

I. Determining the Existence Of Cell Phone Evidence

An Approach to Cell Phone Evidence for Criminal Defense Attorneys

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ne need only walk down the street or through a mall in order to come to the conclusion that cell phones are widely used. The proliferation of electronically stored evidence (ESI) that resides on cell phones will have increasing importance when the prosecution alleges that cell phones were used in the commission of crimes. As a result, familiarity with electronic discovery (ediscovery) is a necessity for effectively defending a client in a criminal — as well as civil and regulatory — matter. The purpose of this article is to provide a framework

Counsel must determine exactly what kind of phone the defendant used during the time frame of the offenses alleged, the features available and used by the defendant, and whether the defendant is the subscriber on the account. It is very difficult to challenge the prosecution’s ability to subpoena cell phone evidence in its entirety because the information that resides with cell phone carriers is not protected by a heightened expectation of privacy.1 This is particularly the case with the advent of the Communications Assistance for Law Enforcement Act (CALE) in which Congress codified a statutory scheme for prosecutors to access information beyond the scope of the actual content of a wireless communication.2 Use of a cell phone may supply evidence in a criminal prosecution. Notably, the Federal Communications Commission has promulgated regulations requiring wireless communications carriers to have the capability to determine the location from which a mobile phone call originates to within 125 meters; however, additional information (and potential evidence) resides with the cell phone carriers (e.g., the location of each cell phone every few minutes during the period it is turned on). This regulatory requirement may result in a cell phone feature that has evidentiary value associated with it. For example, cell phone usage in many criminal cases are tied into “911” emergency calls, recordings of which are a standard item of evidence to which a defendant is entitled in most jurisdictions. These 911 emergency calls to the police are typically the first point of contact an alleged victim or witness has with law enforcement. Phone calls to contemporary 911 response systems are answered by an emergency operator dispatch at a centralized Public Safety Answering Point (PSAP).3 If the call is from a traditional landline telephone, the local telephone company’s switching software automatically associates the calling telephone number with address information stored in a phone company database and forwards both pieces of information to the emergency operator. The emergency operator transmits the information to local first responders such as law enforcement or the fire department.

BY DANIEL K. GELB

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Alternatively, if the emergency call to 911 is made from a cell phone, neither the phone number nor the location of the caller was available to the 911 operator until recently when GPS capabilities made it possible to locate a particular cell phone. It has been argued that cellular call location information is sufficiently different from information about the phone numbers dialed from a telephone (i.e., that location information reveals more about an individual’s private life) that the analysis applied by the Supreme Court in Smith v. Maryland is inapplicable.4 Importantly, there are state and federal statutes that demand attorneys have an understanding of e-discovery surrounding telecommunications and other forms of ESI that may fall within the penumbra of “communications” protected by privacy statutes such as the Electronic Communications Privacy Act (ECPA).5

The law governing cellular and electronic evidence in criminal investigations has two primary sources: (1) the statutory privacy laws codified at 18 U.S.C. §§ 251022 (Wiretap Statute), 18 U.S.C. §§ 2701-12 (ECPA) and 18 U.S.C. §§ 3121-27 (Pen/Trap Statute); and (2) the Fourth Amendment of the U.S. Constitution. This legal framework and the manner in which it will likely (but not necessarily always) be applied are discussed below.

A. Government’s Use of ECPA To Pursue Evidence Previously, at the federal level, law enforcement could not obtain a wiretap order to intercept wire communications (those involving the human voice) for violations of the Computer Fraud and Abuse Act under 18 U.S.C. § 1030. However, Section 202 of the USA Patriot Act of 2001 amended 18 U.S.C. § 2516(1) by expanding the felony violations of 18 U.S.C. § 1030 to the list of predicate offenses providing a means for law enforcement to obtain a wiretap order.6 As a result, Congress has broadened the government’s ability to investigate suspected criminal activity through the use of information derived from telecommunications. The ECPA provides statutory guidelines on how the government may acquire information from telephone companies concerning customer accounts, Internet service providers, and similar entities.7 Inasmuch as there is no Fourth Amendment right of privacy in such W W W. N A C D L . O R G


Name;
Address;
Local and long distance telephone connection records, or records of session times and durations;
Length of service (including start date) and types of service utilized;
Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
Means and source of payment for such service (including any credit card or bank account number). In certain circumstances, prosecutors can obtain the information — and potentially evidence — without providing prior notice to the phone service subscriber. Government officials can obtain such information plus its contents stored electronically for more than 180 days if they use a subpoena and either: (1) inform the customer of the subpoena; or (2) utilize a statutory procedure permitting the government to delay notifying the customer about the subpoena and its requirements for a period of up to 90 days.8 To obtain such an order, the prosecutor must show that notifying the customer about the subpoena could: (1) endanger someone’s life or physical safety; (2) cause a guilty person to flee prosecution; (3) cause evidence to be destroyed or altered; (4) generate efforts to influence potential witnesses; or (5) otherwise seriously jeopardize the investigation.9 If the government so requests, a court can extend the 90-day period during which the company is barred from informing its customer about the subpoena.10 If a court enters an order barring the company from notifying its customer, the government is then obligated to advise the customer about the subpoena once the period encompassed by the court’s order (and any extensions of the order) has expired.11 One of the many challenges the ECPA presents to defense counsel is the government’s ability to seize electronically stored evidence in the control of third parties that provide the capability for a defendant to communicate in the first instance (cell phone carriers, Internet service provider

accounts, Web-based e-mail accounts).12 Such third parties have authority to access evidence provided relating to stored communications, and it is very difficult for a defendant to challenge its seizure.13

B. Fourth Amendment Protections Because of the growth of fiber optics and wireless services, CALE expands the coverage of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to include call-identifying information, electronic messaging and information services, and telecommunications carriers. It also incorporated additional mechanisms for increasing privacy rights.14 However, the status of the cell phone user may have an impact on whether there was an expectation of privacy, and analyses should be conducted on a case-by-case basis. For example, as with a computer issued by an employer, an individual user of a personal cell phone would likely have a higher expectation of privacy than one issued by a private employer.15 With respect to public sector employees, counsel must remember that searches conducted by governmental employers of information created by its employees may trigger the Fourth Amendment.16 One could argue that information created on a wireless device issued by a public sector employer for business and personal use may create standing for challenging its seizure. For example, one may challenge seizure of ESI contained on the handheld itself; however, as with seizure of electronic evidence in the private sector, the government can utilize a subpoena to a wireless communications or Internet service provider that will likely furnish similarly corroborative evidence in a different form. The major distinction, of course, is that it is highly unlikely that an actual conversation between a defendant and witness was recorded without wiretap implications; however, voicemail may be equally accessible via the cell phone service carrier as via the handheld itself. Although Title III’s protections have been increased for cordless and cell phones, there is no protection “from the government acquiring by a grand jury subpoena noncontent-related billing information about local calls.”17 In addition to CALE, the Telephone Records and Privacy Act of 2006 functions, inter alia, to protect private information concerning customers maintained by telecommunications carriers.18 Despite legislative intent to provide law enforcement with a means of accessing telecommunication evidence, CALE should not be interpreted as preempting the ECPA. Furthermore, counsel I - A - 34 NOVEMBER 2009 3

CELL PHONE EVIDENCE

II. Statutory Overview For Accessing Cell Phone Evidence

records, ECPA “creates statutory privacy rights” in this information. Prosecutors can use a grand jury subpoena to acquire the following information about a telephone service subscriber:

CELL PHONE EVIDENCE

4

must continually pay attention to what kind of evidence the government is seeking (or has already acquired) from cell phone carriers. CALE supports law enforcement efforts; however, it does not relieve the prosecution from conforming to the Fourth Amendment when recovering cell phone evidence from a defendant.19 In order to challenge the search and seizure of evidence under the Fourth Amendment, counsel must show that the defendant had a legitimate expectation of privacy in the place searched or the item seized.20 Alternatively, if the government unlawfully seized evidence in a fashion that could exculpate a defendant, the accused is entitled to discover this information and determine its strategic impact on the prosecution.21 Fourth Amendment challenges to the seizure of cell phone evidence are difficult where there are statutory schemes such as the ECPA that provide the government with a medium to secure ESI relating to cell phones that otherwise would be ascertainable only through a search warrant. Counsel should also note that the ECPA expanded Title III to “update and clarify federal privacy protections and standards in light of dramatic changes in new computer and telephone communications technology.”22 Aside from real-time communications between parties, most other information maintained by cell phone carriers about a subscriber’s account is typically accessible to prosecutors. Similar to other business records, a defendant does not have a protected privacy interest in information that may lead to evidence the defendant may attempt to argue should be protected as a reasonable realm of privacy.23 A question counsel may raise is whether ascertaining messaging data residing on a cell phone’s memory card to determine the location of a defendant differentiates from tracking data residing on pagers or beepers. Counsel must bear in mind that law enforcement regularly relies upon cell phone evidence to determine the position of a defendant in order to “place” the accused at a particular geographic area. The U.S. Supreme Court has held that obtaining such evidence does not violate the Fourth Amendment.24 Notably, cell phones have paging capabilities, and therefore, the prosecution may advance the argument that the paging concept is analogous to cell phone messaging and should be treated as such. The Fourth Amendment protects the defendant’s reasonable expectation of privacy when wireless communication information has been seized merely to W W W. N A C D L . O R G

engage in a governmental fishing expedition for evidence to hopefully link the defendant to a crime. To pursue cell phone evidence, law enforcement typically must in the first instance seize the hardware either incident to arrest, with consent or pursuant to a search warrant.25 There is arguably no reasonable expectation of privacy in the information relating to calls that are placed to a cell phone at the time that they are made. However, the retrieval of telephone numbers or numeric codes that are stored in a cell phone’s memory without a warrant should be construed as an “interception” of a communication in violation of Title III and should be suppressible. A 2009 decision in Virginia indicates that courts will require cell phone owners to take steps to protect phone contents before privacy expectations will attach. In Casella v. Borders,26 plaintiff Jessie Casella alleged violations of 42 U.S.C. § 1983 and intentional infliction of emotional distress. The action arose when her boyfriend was arrested and subsequently searched without a warrant. Police officers discovered a cell phone, which Casella claimed she lent to her boyfriend two months before the arrest. The phone contained nude pictures of the couple. Plaintiff alleged that the arresting officers opened the pictures folder of the phone, discovered the pictures, and made them available to other officers and members of the public. The court in Casella said the pictures could have been exposed to a variety of different parties without plaintiff’s consent under many scenarios, including a police search. Given such possibilities, plaintiff’s lack of possession and control over the phone, and plaintiff’s failure to allege any precautions that she took to exclude others from accessing the cell phone, the court refused to hold that plaintiff’s expectation of privacy in the pictures was objectively reasonable. Thus, she lacked standing to sue under § 1983 for a Fourth Amendment violation.

III. Case Law Permitting Seizure of Cell Phone Evidence As discussed above, cell phone evidence may be obtained by the government through subpoena pursuant to the ECPA, Pen/Trap statute, or another statute. In the alternative, there are situations where courts have permitted the government to utilize cell phone evidence seized under an exception to the warrant clause of the Fourth Amendment. The recent holding in United States v. Santillan by the District of Arizona is a

good example of how cell phone evidence may be recovered by the prosecution pursuant to an exception to the Exclusionary Rule. In Santillan, a customs agent observed defendant Manuel Santillan jogging back and forth near the ArizonaMexico border, paying close attention to traffic, and talking on a cell phone. Santillan was eventually determined to be involved in drug trafficking activity and indicted for conspiracy to possess with intent to distribute marijuana, and possession with intent to distribute marijuana. The defendant moved, inter alia, to suppress evidence derived from the cell phone seized from him that he was using immediately prior to the arrest. The court held that the officers had probable cause for the arrest.27 The defendant argued that federal agents had seized the phone and acquired evidence without a warrant as mandated by the Fourth Amendment. The court disagreed and found that the cell phone was properly seized pursuant to the exigent circumstances and plain view exceptions to the requirement for a warrant.28 Moreover, the court held the search was lawful as incidental to arrest, and that the inevitable discovery and independent source doctrines likewise functioned as exceptions for the federal agents to seize the cell phone and evidence derived from it.29 As discussed above, the government may essentially obtain cell phone evidence either: (1) pursuant to a subpoena or warrant consistent with CALE and ECPA protocol; or (2) by means that either provided consent or provided a well-founded legal exception to the warrant requirement of the Fourth Amendment. Like the Santillan case, the case of United States v. Valdez is another recent example of a court finding governmental authority to obtain cell phone evidence that did not violate a defendant’s constitutional rights.30 In Valdez, the magistrate judge issued a recommendation that the defendant’s motion to suppress cell phone evidence seized by law enforcement in a narcotics case be denied. The defendant objected to the findings by the magistrate judge and pursued a de novo review by the trial judge.31 Although the court adopted the magistrate’s recommendation to deny the motion to suppress in its entirety, Valdez is an interesting opinion that outlines the government’s authority to seize cell phone evidence based on exceptions to the Fourth Amendment’s warrant clause. Detectives searched the defendant’s person and recovered a cell phone, which the searching detective handed to the second detective while the I - A - 35 THE CHAMPION

IV. Procedural and Tactical Issues Since nearly all defendants or witnesses use cell phones, it is highly likely that such evidence will be pursued by

the prosecution where it corroborates a prosecution, or in the alternative, sought after by the defense where it could lead to exculpatory or impeachment evidence. Litigating e-discovery issues concerning suppression of evidence, admissibility of evidence, and expert witnesses comes to the forefront whenever ESI resides in wireless communication devices.

A. Moving to Suppress Cell Phone Evidence As discussed earlier, the prosecution can support its case with evidence from cell phone providers or the phone itself as long as the evidence does not violate the ECPA or the defendant’s Fourth Amendment rights. Suppression arguments are done on a case-by-case basis. The following are just some examples of significant questions counsel should consider in order to determine whether electronically stored evidence seized by the prosecution was lawful and whether the seizure of evidence should be challenged.
Was the ESI obtained either pursuant to a search warrant or as a result of gaining consent?
Did the law enforcement agency seizing the evidence follow standard guidelines on cell phone forensics?34


If it was seized without a warrant or consent, was the ESI seized pursuant to a well-founded legal exception?
Is the evidence testimonial and subject to Crawford v. Washington scrutiny and Melendez-Diaz scrutiny?
Was the information seized the subject of statutory protection or legal privilege (e.g., attorney-client or patient-doctor privileges or spousal disqualification)?
Was the evidence seized described in the affidavit to the search warrant and within its scope?
Is the evidence beyond the scope of a grand jury or administrative subpoena?
Has the evidence been obtained from a collateral legal proceeding as a pretext for gaining admissibility in a criminal prosecution?
Was the evidence obtained from a workplace computer owned by a private or public employer?
Does the cell phone evidence contain any additional information that would not have reasonably been either discovered inevitably or as a result of an independent source?

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search incident to the arrest was being completed. Upon completion of the search, about one minute after he initially recovered the phone, the searching detective retrieved the cell phone from the second detective and proceeded to open the phone, viewing the phone’s address book and calling history. During the suppression hearing, the searching officer provided testimony that he immediately searched defendant’s cell phone, concerned that the information contained therein (e.g., call history and the address book) could be erased remotely or lost should the cell phone become deactivated. The detective testified that he had received information from other drug investigators, and recalled that the wireless communications carrier at issue permits customers to remotely delete information on their cell phones, including the call history and address book.32 The court ultimately found that the detectives in Valdez acted properly by seizing evidence incident to a lawful arrest, and where there were exigent circumstances that the cell phone evidence could be lost or destroyed.33

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Did a constitutional right attach that was violated by the seizure of evidence such as the Fifth Amendment right against self-incrimination or the Sixth Amendment right to counsel?

B. Challenging the Admissibility Of Cell Phone Evidence

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The seizure of cell phone evidence by the prosecution does not mean that the evidence is admissible.35 Therefore, defense counsel must determine whether the government can properly admit the ESI into evidence. Counsel must analyze whether evidence not excluded by an order on a motion to suppress may still be subject to exclusion pursuant to a motion in limine prior to the start of trial. The following evidentiary challenges could be raised by the defendant concerning the admissibility of cell phone evidence.
Relevance: Was the ESI seized from the cell phone the kind of evidence that is truly relevant to the prosecution or is it collateral?36
Authenticity: Is the evidence derived from the cell phone or produced by a third party concerning the phone reliable, and can the prosecution establish a proper foundation to support offering the evidence?37
Hearsay: Is the cell phone evidence (such as documents provided by a cell phone carrier, text messages derived from a phone, or digital forensic results of an exam of the phone) the kind of information being offered into evidence for its substantive truth and has it met the evidentiary requirements to become admissible?38
Best Evidence: Is the evidence being offered the original seized by the prosecution or is it an iteration of evidence that is essentially reconstructed?39
Probative v. Prejudicial (Balancing Test): Does the probative value of the evidence being offered become substantially outweighed by the apparent risk to the court of unfair prejudice to the defendant (e.g., cell phone records of calls to unrelated notorious parties to prove guilt by association)?40
Appellate Issues: Has the defense strategy surrounding cell phone evidence properly preserved objections and other related arguments (e.g., offers of proof) concerning evidence the defendant seeks to challenge on appeal?

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C. Using Expert Witnesses Expert witnesses are essential resources to consider. If used efficiently and intelligently, they can be important to a criminal defense. It is important early on for counsel and client to decide which “hat” the expert will wear in the course of the defense to assure the client is receiving the most effective legal representation possible. Will the expert be retained as a member of the litigation team? If not, will the expert be an independent third-party witness who will not become privy to attorney-client communications, work product, or joint defense protected documents and communications? A “consulting expert” may play an important role by educating counsel as to the nature of the ESI and the methods for handling such evidence. Cell phone ESI can be valuable impeachment evidence. Moreover, it can corroborate an alibi or present exculpatory, nonexculpatory, or mitigating defenses. Therefore, proper handling of electronically stored evidence is important. The consulting expert may also assist counsel in litigating cell phone evidence issues. For example, counsel may consider filing a motion for the court to order a subpoena for cell phone records from a third party, which, depending on what is sought, may be more clearly stated to the court if an expert assists counsel with a supporting affidavit. In addition, when defense counsel inspects electronic evidence an expert can guide counsel as to whether the evidence was seized and handled properly by the prosecution. Another issue counsel should consider is the need for a “testifying expert.” For example, testifying experts can be the deciding factor supporting motions for discovery as well as the suppression or inadmissibility of evidence (e.g., spoliation of evidence, failure to assign taint team, etc.). Admissibility of an expert’s testimony either by way of oral testimony or affidavit is governed by standards articulated in rules and decisions such as Daubert v. Merrell Dow Pharmaceuticals, Inc.41 Therefore, engaging expert witnesses with law enforcement experience who are familiar with best practices, standard operating procedures, and industry protocol for handling cell phone evidence should be considered where law enforcement officers have become reliant on cell phone evidence. One example of this is the Kentucky state prosecution of defendant Robert Drown. State police investigators asserted they were able to tie the defendant to the alleged murders of a female victim and her two daughters through the defendant’s and mother-victim’s cell phone records.42 The Daubert hearing involved

questioning of a cell phone evidence expert concerning, among other issues, the concept that “tying cell phone calls to the towers from which they originated was a fairly exact science.”43 Regardless of the kind of expert witness a defense team may retain, the expert must be able to pass the applicable factors for qualification. The U.S. Supreme Court held that the federal rules supersede the previous Frye test that required novel scientific expert testimony to be based on a scientific principle or discovery that has “gained general acceptance in the particular field in which it belongs.”44 Daubert held that the trial court is the “gatekeeper,” deciding the admissibility of the evidence using the preponderance of the evidence standard.45 Daubert does not trump state courts from determining their own standards of expert witness admissibility consistent with local procedural rules. Nevertheless, it is prudent for defense counsel to determine immediately whether an expert is qualified to support the defense and impeach the testimony of the prosecution’s forensics witness on such issues as cell site location, GPS, text messaging, and other commonly used wireless communication features.

V. The Future of ESI Beyond Cell Phones It is important for criminal defense attorneys to recognize that as the mobile communications industry continues to grow, audio communications will not strictly be limited to land lines, cell phones, and their respective voicemail systems. With the emergence of enhanced data and “Voice Over Internet Protocol” communications services, the popularity of transmitting voicemail in digital formats is growing, and there are service providers that are able to transcribe voicemail into text to be transmitted to a cell phone or handheld device. Individuals as well as corporations are subscribing to services that provide the ability to leave voicemails for recipients via “wave” or “mp3” files attached to e-mail both on computer terminals and cell phones. As with e-mail, there is a growing likelihood that voicemail recordings and other sources of evidence derived from cell phone use will be maintained by thirdparty service providers as telecommunication services become more unified. It is essential for counsel to be familiar with voicemail as a communication medium because, as discussed above, the government can subpoena e-mail documents from independent service providers, and will likely be able to do so I - A - 37 THE CHAMPION

with respect to other digitally based communication services such as “electronic facsimiles” and “Web conferencing,” which are services that cell phone carriers are providing as add-on features. Notably, as a result of the publicity regarding the traps inherent in using e-mail, people are more frequently employing other means of electronic communications such as voicemail in their attempts to avoid detection, not realizing that such means do not insulate them from scrutiny by the government through electronic discovery. Therefore, in order to effectively defend criminal matters, defense attorneys must keep abreast of developments concerning electronic evidence and discovery and keep current with respect to both the rapidly evolving legal authorities and technologies used by clients.

Notes

intrinsic to the communication process for such communications. That conclusion is consistent with our precedent.”). 6. Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001; available at http://www.usdoj.gov/criminal/ cybercrime/PatriotAct.htm. 7. See U.S. Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009), available at http:// www.cybercrime.gov/s&smanual2009.pdf. 8. See 18 U.S.C. §§ 2703, 2705(a)(1)(B) (To obtain the contents of electronic communications that have been in storage for less than 180 days, prosecutors must use a search warrant. See, e.g., Guest v. Leis, 255 F.3d 325, 339340 (6th Cir. 2001)). 9. See 18 U.S.C. § 2705(a)(2). 10. See 18 U.S.C. § 2705(a)(4). 11. See 18 U.S.C. § 2705(a)(5). 12. See L. Camille Hebert, Employee Privacy Law, § 8A:16 (citing 18 U.S.C. § 2510(17) defining “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication”). 13. See for comparison United States v.

CELL PHONE EVIDENCE

1. See In re Pen Register & Trap/Trace Device With Cell Site Location Auth., 395 F. Supp. 2d 747 (D. Tex. 2005); see also United States v. Forest, 355 F.3d 942 (6th Cir. 2004) (federal agents tracked defendant’s location by dialing defendant’s cell phone (without allowing it to ring) several times to determine the general vicinity of the defendant). 2. In re Matter of Grand Jury Subpoenas to Southwestern Bell Mobile Systems, Inc., 894 F. Supp. 355, 359 (M.D. Mo. 1995) (finding that

the “primary purposes of CALE were to clarify the carrier’s duty to assist law enforcement in light of technological advances in electronics communications and to address various privacy concerns such as increasing the restrictions on the interception of conversations over cordless phones”), citing H.R. 103-827, 103d Cong. 2d Sess., reprinted in 1994 U.S.C.C.A.N. 3489-90. 3. See In the Matter of Revision of the Commission’s Rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems, Report and Order and Further Notice of Proposed Rulemaking, Fed. Comm. Comm’n, CC Docket No. 94-102, Jul. 26, 1996 ¶ 3. 4. Smith v. Maryland, 442 U.S. 735 (1979). See California v. FCC, 75 F.3d 1350 (9th Cir.1996) (holding that a “phone number is not among the select privacy interests protected by a federal constitutional right to privacy,” and therefore an FCC rule regarding caller identification telephone service does not infringe upon a subscriber’s Fourth Amendment rights). 5. See United States v. Councilman, 418 F.3d 67, 79 (1st Cir. 2005) (discussing, among other issues related to e-mail, the Electronic Communications Privacy Act and the Stored Communications Act, finding an interception of e-mail to be violative of the Wiretap Act, the U.S. Court of Appeals for the First Circuit held: “[T]he term ‘electronic communication’ includes transient electronic storage that is

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D’Andrea 497 F. Supp. 2d 117, 119 (D. Mass. July 20, 2007) citing Smith v. Maryland, 442 U.S. 735 (1979) (“Smith line of cases has led federal courts to uniformly conclude that Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access”). 14. See 18 U.S.C. §§ 2510-2521, 27012711, 3121-3127 (1996). 15. See United States v. Bailey, 272 F. Supp. 2d 822 (D. Neb. 2003) (finding employer had clear e-mail monitoring policy, the court upheld seizure of contents — pursuant to subpoena — of defendant’s e-mail account at his place of employment by employer that were submitted to FBI). 16. See O’Connor v. Ortega, 48 U.S. 709, 715 (1987) (“Searches and seizures by governmental employers or supervisors of the private property of their employees … are subject to the restraints of the Fourth Amendment.”). 17. In re Matter of Grand Jury Subpoenas to Southwestern Bell Mobile Systems, Inc., 894 F. Supp. at 359 (W.D. Mo. 1995). 18. U.S. Department of Justice, First Indictment Filed Under Telephone ‘Pretexting’ Statute (December 30, 2008), available at http://www.cybercrime.gov/ andersonIndcit.pdf. 19. See Katz v. United States, 389 U.S. 347, 359 (1967) (“Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored the procedure of antecedent justification that is central to the Fourth Amendment, a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner’s conviction, the judgment must be reversed.”). 20. Smith v. Maryland, 442 U.S. 735 (1979); Maryland v. Garrison, 480 U.S. 79, 84 (1987) (discussing the warrant clause of the Fourth Amendment the Court held that “[it] ensures that the search will be carefully tailored to its justifications, it will not take on character of the wide-ranging exploratory searches the framers intended to prohibit.”). See also United States v. Comprehensive Drug Testing, Inc., — F.3d —, 2009 WL 2605378 (9th Cir. 2009) (plain view cannot be a pretext for search warrants seeking ESI beyond their scope, and outlining a protocol for seizure and discussing Fed. R. Crim. P. 41). 21. Brady v. Maryland, 373 U.S. 83 (1963). 22. Joel Androphy, 4 White Collar Crime § 44:28 (2d ed.) citing S. REP. NO. 541, 99th Cong., 2d Sess, reprinted in 1986 U.S.C.C.A.N. 3555, 3586. 23. See United States v. Whitten, 706 F.2d W W W. N A C D L . O R G

1000 (9th Cir.1983) (no Fourth Amendment protection in an audible message left on a telephone answering machine). 24. See United States v. Knotts, 460 U.S. 216 (1983) (“monitoring the signal of a beeper placed in a container of chemicals that were being transported to the owner’s cabin did not invade any legitimate expectation of privacy on the cabin owner’s part and, therefore, there was neither a ‘search’ nor a ‘seizure’ within the contemplation of the Fourth Amendment”). But see People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009), in which the New York Court of Appeals held that the installation and surreptitious use of a GPS device to monitor an individual’s whereabouts require a warrant supported by probable cause. The court of appeals discussed the similarities and differences in the Weaver and Knotts cases. 25. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009) (gun and drug case holding as a matter of first impression that search of defendant’s cell phone data incident to his arrest was reasonable). 26. Casella v. Borders, — F. Supp. 2d —, 2009 WL 2778102 (W.D. Va. Sept. 2, 2009). 27. See United States v. Santillan, 571 F. Supp. 2d 1093 (D. Ariz. July 14, 2008). 28. Id. 29. Id. 30. United States v. Valdez, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008). 31. See FED. R. CRIM. P. 59(b)(3). 32. Id. 33. United States v. Valdez, 2008 WL 360548, slip. op. (E.D. Wis. Feb. 8, 2008) citing the following courts upholding seizure of ESI contained in cell phone: United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.), cert. denied, — U.S. —, 127 S. Ct. 2065, 167 L. Ed. 2d 790 (2007) (denying motion to suppress call records and text messages retrieved from cell phone searched incident to arrest); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (collecting cases upholding cell phone searches incident to arrest); United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (upholding seizure of the defendant’s cell phone incident to arrest and accessing of the phone’s call log, phone book, and wireless Web inbox); see also United States v. Dennis, No. 07-008, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (relying on Finley to uphold cell phone search incident to arrest); United States v. Lottie, No. 3:07-cr-51, 2007 WL 4722439, at *24 (N.D. Ind. Oct. 12, 2007) (upholding search of cell phone incident to

arrest and based on exigent circumstances); United States v. Young, Nos. 5:05CR63-01-02, 2006 WL 1302667, at *13 (N.D. W.Va. May 9, 2006) (upholding search of cell phone where evidence showed that numbers could be erased or lost when phone was deactivated). 34. See Guidelines on Cell Phone Forensics, National Institute of Standards and Technology (U.S. Dept. of Commerce), available at http://csrc.nist.gov/publications/ nistpubs/800-101/SP800-101.pdf. 35. See FED. R. CRIM. P. 16. 36. FED. R. EVID. 501. 37. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (defendant entitled to witness-analyst confrontation to ensure protection of Sixth Amendment rights). See FED. R. EVID. 901(a); see also United States v. Hunter, 2008 WL 399150 (9th Cir. 2008) (government properly authenticated the text messages by using the testimonies of the senior manager of the pager’s service provider, the FBI agent who compiled the records, and the defendant’s co-conspirators). 38. FED. R. EVID. 801. 39. FED. R. EVID. 1001-1008. 40. FED. R. EVID. 403. 41. See Daubert. 42. Judge to Rule on Cell Phone Evidence, DAILY INDEPENDENT NEWSPAPER (Apr 22, 2009) available at http://www.dailyindependent. com/local/local_story_111234802.html. 43. Id. 44. 3 Wharton’s Criminal Evidence § 13:5 (15th ed.) citing Frye v. United States, 293 F. 1013 (App. D.C. 1923). 45. See FED. R. EVID. 104(a).

About the Author Daniel K. Gelb is a partner in the law firm of Gelb & Gelb LLP. He is a member of NACDL’s E-Discovery Task Force and is the White Collar Crime Committee’s District of Massachusetts Chairperson. Gelb practices in the areas of criminal defense, securities litigation, and regulatory proceedings. Daniel K. Gelb Gelb & Gelb LLP 84 State Street, 4th Floor Boston, MA 02109 617-345-0010 Fax 617-345-0009 E- MAIL [email protected]

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ing evidence. Several hundred million people have active Facebook and MySpace accounts.1 Unlike traditional Web sites, where users are limited to passive viewing, social networking sites permit users to create personal profiles; post photographs, videos, and audio clips; write blog entries and status updates; send and receive private messages; and link to pages of others. Across the country, law enforcement agents and prosecutors are effectively mining these sites for inculpatory evidence. But evidence from social networking sites is not just for the prosecution. Evidence from these sites can also bolster the defense.

Government Uses of Social Networking Sites

It’s Time to Level The Playing Field — The Defense’s Use of Evidence From Social Networking Sites

f a client is in the crosshairs of a criminal investigation, chances are that law enforcement has already scoured Facebook, MySpace, Twitter, LinkedIn and other social networking sites to search for incriminat-

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A recently obtained document from the U.S. Department of Justice titled Obtaining and Using Evidence From Social Networking Sites highlights the “utility” of evidence from social networking sites for the prosecution.2 In the government’s view, the evidence can reveal personal communications, establish motives and personal relationships, provide location information, prove and disprove alibis, and establish a crime or criminal enterprise.3 Social networking evidence may also constitute “instrumentalities or fruits of crime.”4 Through the use of subpoenas, search warrants, and undercover operations, law enforcement can easily obtain evidence from these sites, particularly given that many social networking companies readily cooperate with law enforcement.5 Numerous cases show that prosecutors are taking full advantage of social networking evidence and using it in every stage of the criminal process, including bail hearings,6 trials,7 sentencing hearings,8 and fugitive apprehension.9 For example, in a murder case, a Michigan appellate court upheld the trial court’s admission of photos of the defendant from his MySpace page in which he was holding a gun and displaying a gang sign.10 In another case, police apprehended three men on sexual assault charges involving a woman they met on MySpace by obtaining their online usernames and accounts from the company.11 The federal government even prosecuted one woman’s use of a MySpace account as an alleged violation of the Computer Fraud and Abuse Act.12

BY THOMAS C. FRONGILLO AND DANIEL K. GELB

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Using Social Networking Evidence to Bolster the Defense Defense counsel can learn a valuable lesson from law enforcement. Social networking sites are not only for the prosecution: they can also be a treasure trove of exculpatory evidence, impeachment material, and other helpful information for the defense. And like the prosecution, the defense can use this evidence at key phases of a case, such as jury selection, pretrial hearings, and during the trial itself, thereby leveling the playing field.13

One of defense counsel’s first tasks during an investigation or case is to learn whether the client has used any social networking sites and posted any harmful information on them. With the client’s assistance, defense counsel should review the information on the client’s past and current social networking accounts. Dated information may appear to be hidden; this could require use of a special search engine to access archived Web content.14 The client should also be advised about the dangers of using social networking sites and alerted that law enforcement is likely monitoring his accounts.15 A former Deputy District Attorney for Los Angeles County made this point quite clearly: As a prosecutor, the first thing I do when I get a case is to Google the victim, the suspect, and all the material witnesses. I run them all through Facebook, MySpace, Twitter, YouTube and see what I might get. I also do a ‘Google image search’ and see what pops up. Sometimes there’s nothing, but other times I get the goods — pictures, status updates, and better yet, blogs and articles they’ve written.16 Even the Justice Department instructs its prosecutors to advise witnesses to “think carefully about what they post” and “not to discuss cases on social networking sites.”17 Thus, in most cases, the client should be advised to discontinue using social networking sites during a pending investigation or case.18 A more difficult issue involves whether anything can or should be done about existing, harmful information that a client has posted on a social networking site. If the information is deleted after the W W W. N A C D L . O R G

Obtaining Evidence From Social Networking Sites Defense attorneys face greater challenges than prosecutors in obtaining social networking evidence because they lack the authority to use many of law enforcement’s investigatory techniques. In addition, social networking companies tend to cooperate with law enforcement’s requests for information,20 but defense requests have been opposed.21 Defense attorneys nevertheless have at least three sources from which they can obtain the evidence: the government, social networking companies and other non-parties, and the Internet. There are two categories of evidence that defense counsel should seek from the government. The first is potentially harmful evidence that the government intends to offer against the defendant as part of its case-in-chief. The defense can obtain copies of this evidence by making a request under Fed. R. Crim. P. 16. Rule 16 requires the government to disclose (1) evidence that it intends to use in its casein-chief, (2) items obtained from the defendant, and (3) relevant written and recorded statements of the defendant.22 However, if a defendant requests disclosure under Rule 16(a)(1)(E), then he is subject to providing reciprocal discovery under Rule 16(b)(1)(A). The second category includes evidence that is material to the defense, including evidence that is favorable to the accused on either guilt or punishment.23 Defense counsel can request the government to produce items that are “material to preparing the defense” under Rule 16(a)(1)(E).24 Defense counsel also should request that the government produce evidence that is favorable to the defense under Brady and Giglio.25 There is a strong likelihood that the government will have in its possession Brady and Giglio material regarding government witnesses, particularly since the Justice Department is advising its prosecutors to “research all witnesses on social networking sites.”26 And the government has candidly acknowledged that social

networking pages pose “potential pitfalls for government witnesses.”27 They can even present similar problems for law enforcement officers who will testify at trial. According to a recent Los Angeles Sheriff ’s Department newsletter, some officers have posted self-descriptive materials on Facebook and MySpace, such as bragging about being a “rogue cop” and a “garbage man, because I pick up trash for a living.”28 These statements certainly qualify as impeachment material under Giglio. Defense counsel can also request that the court issue subpoenas to social networking companies and non-party witnesses for the production of documents and data under Fed. R. Crim. P. 17. Rule 17(c)(1) provides that the court may order a witness to produce books, papers, documents, data, or other designated objects in court before trial or before they are to be offered in evidence.29 A party seeking production of materials before trial under Rule 17(c) must show that the subpoenaed information is relevant, admissible, and requested with specificity.30 While there is a paucity of reported cases involving the defense’s use of a subpoena to obtain social networking evidence, this nevertheless could be a powerful tool for obtaining valuable evidence for the defense.31 In addition to directing discovery requests to the prosecution and requesting third-party subpoenas, defense counsel can obtain evidence from social networking sites by independent investigation using the Internet. As soon as possible in a case, defense counsel should search all social networking sites for publicly available information regarding both government and defense witnesses. Thereafter, counsel should perform routine checks of those accounts for any changes, and should conduct additional searches upon learning the identities of new witnesses. Counsel’s investigation could yield helpful information that the government has not discovered and provide the defense with an advantage at trial.

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Advising Clients About Their Use of Social Networking Sites

client learns of an investigation, the government likely will be able to retrieve it. In this situation, the prosecution may assert that the client obstructed justice by deleting incriminating information during a pending investigation.19 The government may also argue that the deletion of the information is evidence of the client’s consciousness of guilt. Counsel should assume that the government knows about the evidence and, if not, it soon will.

Ethical Issues to Consider Thorny ethical and legal issues can arise if, during an investigation of a social networking site, counsel (1) fails to disclose his true identity and relationship to a pending case; (2) uses third parties to gain access to information; or (3) uses a fictitious identity to obtain the information. While most jurisdictions have not yet addressed the limits of counsel’s use of social networking sites to gather evidence, at least two bar committees have issued I - A - 41 AUGUST 2010

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advisory opinions.32 At a minimum, defense counsel needs to be cautious, and should not attempt by any means to access a witness’s online profile using a false name. Attorneys should seek counsel from the governing ethics boards of their local bar associations.

Twitter and real-time blog coverage of the case. This will assist counsel in determining whether a witness has based his testimony on online information concerning the testimony of another witness.

Jury Selection

The explosion in the popularity of social networking sites has generated a wealth of evidence to be used in criminal cases. Comprehensive discovery of evidence from social networks is now imperative. The prosecution obtained an early lead. It’s time for the defense to level the playing field and aggressively use this rich source of information at trial. The authors wish to thank Rachel Z. Friedman and Allison S. Lukas, law students at Harvard Law School, for their helpful research and contributions to this article.

Evidence from social networking sites can be useful to the defense during jury selection. Defense attorneys and trial consultants can obtain publicly available information about prospective jurors from social networking sites and Internet search engines.33 In cases where juror questionnaires are available to counsel well before trial, there is ample time to conduct an effective search. Even when the identities of prospective jurors are disclosed for the first time at trial, defense counsel’s staff and trial consultants should have sufficient time to gather valuable information.

Real-Time Trial Reporting on Social Networking Sites Another possible issue that counsel may encounter involves the role of social networking sites in the real-time reporting of criminal trials from the courtroom, typically via live-feed Web sites like Twitter.34 Real-time feeds and live blogging of trials can result in circumvention of sequestration orders by the government’s witnesses, which happened in the recent criminal environmental trial of United States v. W.R. Grace. In Grace, the court permitted the University of Montana Law School and School of Journalism to cover the trial in real time. Each day, students published detailed accounts of the trial testimony via Twitter and chronicled the trial’s events on a weblog. Although witnesses had been sequestered, the government’s key witness nevertheless read about the trial testimony online, a fact that he admitted during cross-examination. The defense accused the witness of fabricating testimony based on his review of the real-time accounts of two other government witnesses’ testimony. Indeed, the district court later struck the testimony of this witness against one of the defendants and issued a harsh jury instruction regarding his credibility.35 Defense counsel should be aware of any live blogging or tweeting from the courtroom and alert the court to any problems this might cause. In making a request for witness sequestration, counsel should ask the court to prohibit witnesses from following online updates of the trial. During trial, the trial team must read any W W W. N A C D L . O R G

Conclusion

Notes 1. See Facebook Press Room, http://facebook.com/press/info.php?statistic s (last visited July 6, 2010); MySpace Fact Sheet, http://www.myspace.com/pressroom? url=/fact+sheet/ (last visited July 6, 2010). 2. In response to a request under the Freedom of Information Act by the Electronic Frontier Foundation, the U.S. Department of Justice, on March 3, 2010, produced an undated PowerPoint presentation authored by members of the Department’s Computer Crime & Intellectual Property Section. The PowerPoint includes a data reference date of August 12, 2009, indicating that it was written after that date. 3. Obtaining and Using Evidence From Social Networking Sites, U.S. Department of Justice (Computer Crime & Intellectual Property Section, undated PowerPoint) at slide 9 (hereinafter “DOJ PowerPoint”). 4. Id. 5. Id. at slide 8; see also Facebook Subpoena/Search Warrant Guide, http://dtto.net/docs/facebook-manual.pdf (last visited July 6, 2010) (internal Facebook document dated February 2007, describing the procedure for requesting information from Facebook). 6. In a New York case involving charges of assault and unlawful possession of a firearm, the court increased the defendant’s bail from $5,000 to $50,000 based on 10 pages of photos of the defendant found on a MySpace page. See Ken Strutin, Social Networking in a Self-Surveillance Society, NEW YORK LAW JOURNAL, March 10, 2009, citing MySpace Page Used Against Gang Suspect, Buffalo News, January 23, 2009. These pictures allegedly showed the defendant wearing gang clothing, displaying gang signs, and standing with others in gang colors. Id. 7. In sex offender cases, courts have

admitted evidence of communications on social media sites between defendants and their under-aged victims. See, e.g., State v. Bell, 145 Ohio Misc. 2d 55, 67-69 (Com. Pl. 2008). 8. Photos of drunken or seemingly unremorseful DUI defendants, taken from their Facebook and MySpace pages, have reportedly influenced judges to impose longer prison sentences. See Philip K. Anthony and Christine Martin, Social Media Go to Court: Litigators Find There’s More to Web 2.0 Than What Jurors Put on Their Facebook Profiles, RECORDER (San Francisco), February 20, 2009. In one case, images of a defendant holding a loaded weapon, taken and posted on his MySpace page after his conviction for a violent felony, were admitted as evidence to increase his sentence. See Daniel L. Brown and Aimee R. Kahn, Savvy Use of Social Networking Sites, NEW YORK LAW JOURNAL, September 8, 2009. 9. Laura Saunders, Is ‘Friending’ in Your Future? Better Pay Your Taxes First, WALL ST. J. (August 27, 2009) (discussing how tax authorities located a man accused of tax evasion from information that he posted on his MySpace page). 10. People v. Liceaga, 2009 Mich. App. LEXIS 160, *7-12 (Mich. Ct. App. Jan. 27, 2009). 11. Julie Masis, Is This Lawman Your Facebook Friend? Increasingly, Investigators Use Social Networking Web Sites for Police Work, BOSTON GLOBE, January 11, 2009. 12. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). In Drew, the defendant set up a fictitious MySpace profile, pretending to be a teenage boy, in violation of MySpace’s terms of consent. She then used that profile to contact a classmate of her teenage daughter and instigate a romantic relationship. When the defendant abruptly ended the relationship, the young woman committed suicide. The defendant was charged with violating the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, for intentionally accessing a computer without proper authorization in furtherance of the commission of a criminal or tortious act.The jury acquitted the defendant on the felony charge, but convicted her of a misdemeanor violation. The district court vacated the conviction on the ground that the statute was void for vagueness as applied. Id. at 461-67. 13. Some defense attorneys have already followed the government’s lead and successfully used evidence from social networking sites at trial.For example,in People v. Rodriguez, 19 Misc. 3d 830, *5 (N.Y. Crim. Ct. 2008),the court dismissed charges of harassment and endangering the welfare of a child based in part on the alleged victim’s MySpace account activity, noting that she had made no efforts to block messages from the defendant or remove him from the list I -ofA - 42

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should press for early disclosure of exculpatory evidence from social networking sites so that it can be effectively used in formulating the defense. 26. See DOJ PowerPoint, supra note 3, at slide 15 (emphasis in original). 27. Id. 28. See San Diego District Attorney, Law Enforcement Legal Update, Easy Way to Destroy Your Credibility and Your Career, 14 LEGAL UPDATE 9 (August 13, 2009). 29. In subpoenas directed to social networking companies, defense counsel should specifically seek production of (1) picture, audio and video files; (2) meta data; (3) information concerning certain URLs; (4) internet protocol address and other location identifiers; (5) Internet Service Provider address and Internet subscriber information; (6) abuse reports; (7) site terms of use; (8) social networking site profiles of witnesses and other individuals related to defendant; (9) business and personal activities of witnesses or the defendant; (10) frequency of postings/use; (11) social, business and other group affiliations on the Social Media platforms; and (12) evidence or any relevant information uploaded online to the Web site. 30. See United States v. Nixon, 418 U.S. 683, 700 (1974). 31. Memorandum and Order at 5, United States v. Kernell, No. 03-CR-142 (E.D. Tenn. March 17, 2010) (granting defendant’s motion to authorize issuance of subpoena under Fed. R. Crim. P. 17(c) for information from 4chan’s message boards). 32. The Philadelphia Bar Association’s Professional Guidance Committee issued an opinion prohibiting the use of deception by attorneys and their associates when contacting witnesses through online accounts. See Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (March 2009). The Committee proscribed counsel from contacting a person through online social media profiles without addressing the underlying purpose of the contact or disclosing an affiliation with the case. See id. Reaching a different conclusion, the New York County Lawyers’ Association’s Committee on Professional Ethics issued an opinion stating that attorneys may supervise non-attorney investigators who conceal or misstate their identity to gather evidence online, provided certain conditions are met. NYCLA Committee on Professional Ethics, Formal Opinion No.737,Issued May 23,2007. Those conditions include a showing that the evidence is “not reasonably available through other lawful means” and that the acts do not violate third-party rights and other ethical rules. Id. See also Ken Strutin, Evidence on Social Networking Sites, 8 INTERNET LAW & STRATEGY 3 (January 2010); Gregory S.

Spizer, Understanding of Social Media Intrinsic to Modern Legal Practice, 241 LEGAL INTELLIGENCER 93 (May 14, 2010). 33. See Molly McDonough, Trial Consultants Add Facebook/MySpace to Juror Research Toolbox, A.B.A.J. (Sept. 29, 2008). 34. See Nadia White, UM’s Grace Case Project, THE MONTANA LAWYER (April 2010). 35. See Order, United States v. W.R. Grace, No. 05-07-M-DWM (D. Mont. April 28, 2009); Jury Instruction, United States v. W.R. Grace, No. 05-07-M-DWM (D. Mont. April 28, 2009). 

© Thomas C. Frongillo and Daniel K. Gelb, 2010. All rights reserved.

About the Authors Thomas C. Frongillo is a partner at Weil, Gotshal & Manges, LLP. He is the head of the Boston office litigation practice and the Co-Chair of the firm’s White Collar Defense & Investigations Group. He also is the White Collar Committee’s Co-Chair for the First Circuit. His practice concentrates on white collar criminal matters and business litigation. Thomas C. Frongillo Weil, Gotshal & Manges LLP 100 Federal St., Floor 34 Boston, MA 02110 617-772-8335 Fax 617-772-8333 E - M AI L [email protected]

Daniel K. Gelb, an NACDL life member, is a partner in the law firm of Gelb & Gelb LLP. He is the White Collar Crime Committee’s District of Massachusetts Chairperson. Daniel practices in the areas of criminal defense, securities litigation, and regulatory proceedings.

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friends granted access to her profile. 14. Several search engines, such as the Internet Archive: Wayback Machine (http://www.archive.org/web/web.php), are capable of locating old Web pages that have been altered or deleted. 15. See Gregory S. Spizer, Understanding of Social Media Intrinsic to Modern Legal Practice, 241 LEGAL INTELLIGENCER 93 (May 14, 2010). 16. See Robin Sax, Watch What You Say … Online, HUFFINGTON POST, http://www.huffingtonpost.com/robins a x / w a tc h - w h a t - yo u - s ay - o n l i n e _ b _ 217366.html (dated June 18, 2009, last visited June 19, 2009). 17. See DOJ PowerPoint, supra note 3, at slide 31. 18. The defense must also be prepared to oppose the admission of such evidence by the government. Counsel should consider filing a motion in limine to exclude the evidence, as well as objecting to its admission at trial. Objections could include lack of authentication, failure to identify the defendant as the author, relevancy, hearsay, and undue prejudice. See, e.g., Griffin v. State, 2010 WL 2105801 (Md. May 27, 2010) (discussing in detail authentication of evidence from social networking sites). 19. See 18 U.S.C. § 1519; see also United States v. Wortman, 488 F.3d 752 (7th Cir. 2007) (defendant convicted of obstruction of justice for destroying incriminating evidence that belonged to her boyfriend after learning that he was under investigation by FBI). 20. See DOJ PowerPoint, supra note 3, at slide 15. 21. See, e.g., California Criminal Defense Law Firm Wallin & Klarich Seeks Court Order to Obtain Electronic Communications From Facebook, MySpace, PRWEB, http://www. prweb.com/releases/facebook-myspace/ court-order/prweb2675884.htm (dated July 27, 2009, last visited July 6, 2010). 22. See Fed. R. Crim. P. 16(a)(1)(B)(i) and 16(a)(1)(E)(ii) and (iii). 23. One court has held that defense counsel’s failure to investigate and pursue evidence from social networking sites could be ineffective assistance of counsel. See Cannedy v. Adams, 2009 WL 3711958 (C.D. Cal. Nov. 4, 2009). 24. The scope of Rule 16 extends beyond items that are in the physical possession of the prosecutor; the government also must produce information in the possession of the federal agencies. See United States v. W.R. Grace, 401 F. Supp. 2d 1069, 1074 (D. Mt. 2005). 25. While the government’s constitutional obligations under Brady are self-executing and do not require a motion by the defense, defense counsel nevertheless

Daniel K. Gelb Gelb & Gelb LLP 84 State Street, 4th Floor Boston, MA 02109 617-345-0010 Fax 617-345-0009 E - M AI L [email protected]

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Controlling cost of e-discovery more important than ever By Daniel K. Gelb and Richard M. Gelb Electronically stored information is the mine where golden nuggets of information reside. However, it is incumbent upon counsel to find the veins of ore, rather than spending time breaking rocks. Otherwise, the costs of discovery will prevent DANIEL K. GELB parties from access to a fair adjudication of their disputes. The discovery of electronically stored information (ESI) has become a specific practice area for attorneys and digital forensics consultants alike. The federal courts in civil litigation apply RICHARD M. GELB the Federal Rules of Civil Procedure found at http://www. uscourts.gov/rules/CV2009.pdf. Since Dec. 1, 2006, certain rules codified in the FRCP have begun to target the handling of ESI during pretrial discovery. Alternatively, at the state level, courts have non-binding guidelines available to them promulgated by the National Center for State Court’s Conference of Chief Justices entitled “Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information” (found at http://www.ncsconline.org/ images/ EDiscCCJGuidelinesFinal.pdf). Some jurisdictions have codified rules of court governing the handling of ESI during the discovery process; however, Massachusetts is not one of them. Daniel K. Gelb and Richard M. Gelb practice at Gelb & Gelb in Boston.

At both the state and federal levels, spoliation of ESI can have draconian results if a party is sanctioned. In federal criminal litigation, there is not a corollary to the FRCP relating to ESI. Notwithstanding this fact, spoliation of ESI can also result in dire consequences, including an obstruction of justice charge for a criminal target or dismissal of an indictment for the government. Therefore, e-discovery is a central concern during civil litigation, criminal prosecutions, internal investigations, regulatory proceedings and arbitration. Not just e-mail Notably, ESI is not confined to e-mails. ESI includes all information created, stored or accessed by computer technology of any type. Use of electronic facsimile transmissions, PDAs like the iPhone and BlackBerry, voicemails stored in wave or mp3 files, instant messages, GPS devices and website content are just a handful of examples where ESI may be located. In addition, ESI includes information about the ESI sought such as metadata (e.g., data about data), as well as information residing in locations that are not readily accessible and require commercial digital forensics services to recover latent, dormant or ephemeral data. As technology develops and communications through electronic mediums become more unified through development like voice-to-text and audio attachments, e-discovery as a discipline will only continue to proliferate at rocket speed. New technology, same approach The best way to approach e-discovery is to visualize the proceeding as one would with hard-copy documents. The same rules apply to ESI. The difference is that ESI is in a dynamic form — for example, metadata changes when a document is opened — and is more prolific.

E-discovery should also be viewed through its components: preservation, production and retrieval. Finally, e-discovery should be conducted in the context of the case strategy. Preserving ESI is the least costly aspect of e-discovery. For example, engaging a computer forensics vendor to “mirror” (i.e. copy) and escrow a hard drive on a laptop computer should be done routinely. Of course, issues arise for large companies that have complex computer systems and procedures such as backing up computers with tapes. Such companies can proactively control costs by implementing document retention policies, protocols for storing ESI and employee policies, like stating in an employee handbook that there is no expectation of privacy as to a company-owned computer. The obligation to preserve ESI is triggered when litigation is “reasonably anticipated.” However, a company is not a guarantor of the preservation of ESI and must weigh the costs of preserving ESI (i.e. suspending normal procedures for ESI destruction) against the risks of not preserving ESI (i.e. court sanctions). Outside counsel, in conjunction with a computer forensics expert, can assist the company by addressing the legal issues and implementing and documenting the strategy so that a vigorous argument can be made that the company took reasonable steps to preserve the ESI. Formulate a strategy Once the ESI is preserved, counsel should formulate a strategy with the client as to the initial use of the ESI. For example, counsel may ask the client (who is almost assuredly the most familiar with the subject matter and location of ESI) to quickly obtain some emails to attach to an affidavit in support of a motion for a temporary restraining order in a noncompetition case. I - A - 44

2 • NEW ENGLAND IN-HOUSE The approach would be different when responding to a subpoena from the Department of Justice where obstruction of justice is a concern. An adversary must justify its request for ESI in the same manner as it would with respect to hard-copy documents. The request must be relevant and reasonably calculated to lead to the discovery of admissible evidence. Therefore, a request for all e-mails for the period from x to y without regard to the subject matter would be overly broad. Moreover, a request for all metadata (thereby necessitating an extensive privilege review) may be overly broad and burdensome. For example, the metadata for an Excel spreadsheet in a securities fraud case may be relevant. The metadata for a contract — the terms of which are not in dispute — would not be relevant. Thus, what is to be preserved and produced may be the subject of negotiation. If the parties cannot resolve their disputes, they may ask for relief from the court. Counsel — along with the client and any necessary experts and vendors — should also formulate a protocol for the production. Who will review the ESI? For example, trial counsel may wish to personally review emails sent and received by the key custodians (i.e. company employees). Will contract attorneys do a privilege review, and, if so, what procedures will be put in place to avoid inadvertent production? Will a vendor “dedupe” (i.e. weed out duplicate copies) prior to review? In what form will the documents be produced? Where will the internal copy be hosted? Retrieval The preservation and production of ESI is an episodic event at the commencement of litigation. Retrieval of ESI for strategic purposes is ongoing through discovery and trial. Going back to the mining analogy above, how do you find the golden nuggets? First, counsel must be experienced in the courtroom so that issues to be advocated at trial are properly framed at the start and refined during the course of the case. If one were to climb Mount Everest, it would be more prudent to use a guide who has

July 2010 reached the summit rather than one who spent his time at base camp. Second, work with vendors who are creative and efficient. The trial team will likely use 2 to 5 percent of all of the ESI for purposes of depositions and trial. Look at the trial team as the gourmet chefs who want to spend their time in the kitchen making the meal. The vendors are like the sous chefs who go to the market to find the best ingredients. A responsible vendor will educate the client and counsel how to best retrieve documents (e.g. that e-mails have embedded in them associated ESI so that they can be retrieved by sender and recipient without

Clients should not be reticent in exploring with counsel the economic arrangements for the services to be utilized. the need to code them). Third, make experts part of the team. Ninety percent of cases are settled, and a consulting expert can be more effectively used than a testifying expert since communications with a consulting expert are protected by the attorney-client privilege and work product doctrine. Multitask rather than approaching the case in a linear matter (i.e. liability and then damages). For example, emails may be retrieved through a key word search. If words are added after the search, the cost is duplicative rather than incremental. Therefore, use a damages consulting expert to supply key words to the e-discovery vendor at the same time liability discovery is taking place. Fourth, the client should be a good consumer. The client — with trial counsel — should interview vendors who have the expertise and tools specific to the tasks to be undertaken. Is the vendor’s product user

friendly and well supported? If the documents are to be hosted on the Internet, is the vendor’s platform secure (e.g. certified by the Department of Defense and backed up at offsite locations)? Does the computer forensics expert have the appropriate qualifications for the engagement (e.g. a law enforcement background, an advanced degree in computer science)? Clients should not be reticent in exploring with counsel the economic arrangements for the services to be utilized. Does counsel have an economic arrangement with the vendor (e.g. an override on services)? Is counsel objective in selecting the vendor (e.g. is there a case referral arrangement between the law firm and vendor)? What due diligence was performed with respect to experts and vendors (e.g. does the law firm use a facilities management approach by hiring a company that provides one stop shopping or are vendors individually selected on the basis of their credentials, knowledge, experience, reputation, and prior experiences with the client and/or counsel)? Will counsel be amenable to having the vendors (e.g. contract attorneys) bill on a direct basis rather than through the law firm with on fee added on? Finally, the best way to control the course and costs of litigation (as well as any other proceedings) is to have a close partnering relationship with counsel. Collaboration on case and discovery plans and project budgets is critical. Ongoing communication regarding case strategy including settlement opportunities allows the client and counsel to maintain a meeting of the minds and avoid the element of surprise. As with any subject matter, knowledge is power. At a minimum, clients should become familiar with the issues relating to ediscovery and be aggressive in probing their counsel so that they understand and are comfortable with how their case is being handled. Litigants who must deal with large volumes of ESI cannot create a perfect world; however, they should be proactive in creating one that is most beneficial and practical for the NEIH client.

I - A - 45 Reprinted with permission from The Dolan Co., 10 Milk Street, Boston, MA 02108. (800) 444-5297 © 2010 #01382vw

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E-Discovery in Criminal Cases: A Need for Specific Rules

Daniel B. Garrie, Esq.1 & Daniel K. Gelb, Esq.2 This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESI) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The following suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESI in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered. Section I introduces the subject matter of e-discovery and ESI. Section II addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of civil procedure governing the pretrial exchange of ediscovery. Section III delves into the manner in which the criminal justice system appears to be handling e-discovery in criminal matters. It further discusses an arguable disconnect between traditional rules of criminal procedure addressing pretrial discovery and the growing need for modernization of the rules in criminal proceedings to specifically direct parties 1. Daniel Garrie, Esq. holds a BA and MA in Computer Science. He serves as a neutral and mediator for resolving e-discovery and technology advising on many cases and over 40 e-discovery cases last year. He also serves by court appointment as Special Master focusing on e-discovery disputes in state and federal courts with Alternative Resolution Centers (www.arc4adr.com) all over the country. He is also a Managing Director at FSRDG LLC (www.fsrdg.com), a world-class boutique legal strategy consulting firm. He was previously a principal and Director of E-Discovery at the leading global consulting firm of Charles Rivers Associates International (CRA). Prior to joining CRA, Mr. Garrie was a Vice President of LegalTech Group, where he founded and built a boutique legal strategy consulting firm that focused on providing e-discovery, litigation readiness, digital privacy, and digital information risk management. Mr. Garrie has published more than fifty articles and books on various electronic discovery issues and has spoken to judges, attorneys and technologists on electronic discovery and information risk management. He is actively involved with the Sedona Conference WG1. He can be reached at [email protected]. 2. Daniel K. Gelb, Esq.is a partner at Gelb & Gelb LLP in Boston, Massachusetts (www.gelbgelb.com), and would like to thank his father, Richard Gelb, Esq., with whom he practices for his insight and contribution to this article. Daniel Gelb represents clients at both the state and federal levels in white collar and general criminal defense matters, complex civil litigation concentrating in business and securities, arbitration and regulatory proceedings. Prior to joining Gelb & Gelb LLP, Mr. Gelb was an Assistant District Attorney with the Norfolk County District Attorney’s Office in Massachusetts. He is a member of the National Association of Criminal Defense Lawyers’ E-Discovery Task Force, an Advisory Board Member of BNA, Inc.’s White Collar Crime Report, chairs the Massachusetts Bar Association’s Implementation of Technology Taskforce, and is a member of The Sedona Conference’s Working Group on Electronic Document Retention & Production. The opinions and analyses contained herein are that of the authors only and should not be interpreted as legal advice.

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on how to uniformly interact concerning ESI where such directions exist in civil litigation matters.3 Moreover, Section IV addresses the concern that the status quo of e-discovery in criminal matters places parties that lack financial resources at a substantial disadvantage, as opposed to those who are able to retain legal counsel to navigate e-discovery issues. Section V discusses the constitutional implications surrounding e-discovery in criminal matters. Sections VI and VII discuss a proposal for a “balancing test” and possible pretrial discovery tools for the exchange of ESI beyond that which is contemplated in more traditional rules of criminal procedure currently followed by the courts. I. INTRODUCTION Criminal defense lawyers are as obligated as their civil law brethren to be conversant with electronic discovery and its various attendant forms of electronically stored information in order to effectively represent their clients. Modern day communications, through email, the Internet, instant messaging, electronic faxing, and digital voicemail, expand the nature and location of “relevant evidence” as well as the obligations to obtain, preserve, produce and manage this evidence. ESI evidence when handled properly, or if mishandled, can significantly impact the outcome of a client’s civil or criminal case. Importantly, ediscovery assumes a critical role unique to criminal proceedings. Unlike hard copy documents and tangible evidence (e.g., gun, picture, clothing, etc.), ESI may contain exculpatory evidence that may not be readily apparent to the prosecution, who maintains custody and control over the ESI. Additionally, the prosecution may improperly possess ESI that should be the subject of a motion to suppress. Finally, the dynamic nature of ESI has the potential to develop into Brady4 material. The government’s obligations under Brady are not rooted in any particular constitutional right to discovery, but rather in the due process protections defendants are afforded in criminal proceedings.5 A. How to Obtain Electronic Evidence A significant issue many criminal defendants may encounter is ascertaining and obtaining electronic evidence in the possession of the prosecution. The greatest challenge may well lie in successfully convincing the court that the prosecution’s approach to the pre-trial exchange of ESI will adversely impact the defendant’s constitutional and procedural rights in building a full and fair 3. See FED. R. CIV. P. 26; FED. R. CIV. P. 34. 4. Brady v. Maryland, 373 U.S. 83 (1963) (addressing evidence in custody of prosecution that would exculpate accused or mitigate guilt). 5. See 2 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. § 254.2 (quoting U.S. v. Bagley, 473 U.S. 667, 675 (1985)).

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defense to the government’s charges. The expense and burden of e-discovery must be balanced against the potential of a criminal defendant losing one’s liberty. B. What the Constitution Says About Electronic Discovery The United States Supreme Court primarily has grounded a defendant’s rights to fairness in the criminal process on the defendant’s right to invoke the protection of the Fifth Amendment.6 Moreover, the Due Process Clause applies to each state via the Fourteenth Amendment of the Constitution, which “in effect affirms the right to trial according to the process and proceedings of the common law.”7 Due process, as a general proposition, adapts to facts as they are presented in specific circumstances, and is a progressive principle that has been applied to mediums containing ESI, such as search warrants of computers and testimonial evidence on audio tape.8 Even though today’s technological mediums did not exist when the Due Process Clause was codified, the judicial system has recognized that a defendant’s rights must be expanded to accommodate contemporary applications.9 Evidentiary forms like ESI should be governed by the same Due Process analysis courts have recognized in the past when considering new forms of evidence. The just obligation to make relevant evidence available to the accused or suppress its use when improperly obtained resides with the judicial system as the ultimate protector of a defendant’s constitutional rights. C. The State of Criminal Electronic Discovery Today Unfortunately, the criminal justice system as of yet has not expanded the Federal Rules of Criminal Procedure in a manner which would ensure that 6. See U.S. v. Stein, 435 F. Supp. 2d 330, 357 (S.D.N.Y. 2006). 7. See 1 WAYNE R. LAFAVE, CRIM. PROC. § 2.4(b) (3d ed.) (citing 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1783 (1833)) (“The original meaning of due process”); see also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1783 (1833) (referencing Daniel Webster’s argument in the Dartmouth College case). Webster similarly stated that “by the law of the land is most clearly intended the general law: a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). 8. See U.S. v. Laine, 270, F.3d 71, 76 (1st Cir. 2001). 9. As Justice Brandeis stated in his dissenting opinion in Olmstead: We have . . . held that general limitations on the powers of government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the states from meeting modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world. Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting).

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criminal defendants receive reasonable access to ESI evidence sufficient for their counsel to advocate capably for the protection of their Fourth,10 Fifth11 and Sixth12 Amendment rights. Further driving the need for the right electronic discovery rule framework is that, without a rule, the judicial systems risks collapse soon. Because the vast majority of criminal defendants are indigent, and thus, without funds to pay for costly electronic discovery, they could potentially bankrupt the judicial system.13 II. CIVIL LITIGATION PIONEERS OF “ELECTRONIC DISCOVERY” The concept of “electronic” evidence is now commonplace in civil litigation. In fact, in 1970, the Federal Rules of Civil Procedure were amended to incorporate “data compilations” as discoverable items.14 The Advisory Committee Notes for the 1970 amendments acknowledge that the intent of the revision was to bring the discovery process into accord with changing technology.15 Over the past decade, there have been further attempts to keep ediscovery on pace with technological advances, as reflected in such cases as McPeek v. Ashcroft,16 Rowe Entertainment, Inc. v. The William Morris Agency, Inc.17 and Zubulake v. UBS Warburg, LLC.18 These cases have led to 10. U.S. CONST. amend. VI; see also FED. R. CRIM. P. 41(c)(1) (requiring magistrate issue warrant identifying property for seizure and person or place to be searched). 11. U.S. CONST. amend. V. 12. U.S. CONST. amend. VI. 13. See CAROLINE WOLF HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000); STEVEN K. SMITH AND CAROL J. DEFRANCES, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4 (1996). 14. FED. R. CIV. P. 26; see also Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV2120 (LMM) (AJP), 1995 WL 649934, at *1 (S.D.N.Y. Nov. 3, 1995) (acknowledging computerized data compilations can be discoverable). 15. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 527 (1970). 16. 202 F.R.D. 31 (D.D.C. 2001). The McPeek court used a marginal utility approach to order the producing party to restore a limited number of backup tapes containing emails that may have been pertinent to the case. Id. at 34. The court held that there was enough likelihood of finding responsive emails in backup tapes created between July 1, 1998 and July 1, 1999 to justify imposing the costs of the search on the producing party. Id. The court further ordered the producing party to keep a record of its costs so the parties could argue whether the search results would justify further backup tape restoration. Id. at 35. 17. 205 F.R.D. 421 (S.D.N.Y. 2002). In Rowe, a producing party moved for a blanket protective order precluding discovery of email stored on backup disks. Id. at 423-24. The court held that, while there was no justification for a blanket protective order, the costs associated with restoring and producing the emails should be shifted to the requesting party. Id. at 428, 433. In doing so, the court created and applied an eight-factor cost-shifting test. Id. at 429. 18. 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce “all documents concerning any communication by or between UBS employees concerning plaintiff”. Id. at 312. The defendant produced 350 pages of documents, including approximately 100 pages of email. Id. at 312-13. The plaintiff knew that additional responsive emails existed because she, in fact, had produced approximately 450 pages of email from her own correspondence. Id. at 313. The plaintiff then requested that the defendants produce the additional email from archival media. Id. at 313. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Id. at 317. The court noted that the application of Rowe’s eight-factor, cost-

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corporations being ordered to preserve and “produce, sometimes at considerable expense, computerized information, including email messages, support systems, software, voicemail systems, computer storage media and backup tapes and telephone records.”19 On December 1, 2006, the federal courts responded to the growing demands and complexities of e-discovery by amending the Federal Rules of Civil Procedure to address discovery and ESI issues.20 A. The Definition of Electronic Stored Information under the Civil Rules The amended Federal Rules of Civil Procedure defined ESI and set out a series of requirements for parties to identify ESI at the start of litigation. Specifically, amended Rule 34(a) defines ESI as “other data or data compilations . . . stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form.”21 Courts have applied the amended rules by requiring both corporate and individual parties to preserve,22 identify,23 disclose,24 and produce,25 on pain of monetary and other sanctions, relevant information on any electronic device. B. Doctrine of Safe Harbor and Spoliation The amended Federal Rules of Civil Procedure also recognized a limited safe harbor from sanctions arising from the loss of electronically stored information as a result of the “routine, good faith operation of an electronic shifting test may result in disproportionate cost-shifting away from large defendants. Id. at 320. It then modified the test to include only seven factors. Id. at 322. Applying the modified test, the court ordered the defendant to produce, at its own expense, all responsive email existing on its optical disks, active servers, and five backup tapes selected by the plaintiff. Id. at 324. Discovery of emails stored on the additional eighty-nine backup tapes remained contingent upon a successful initial search of the first five tapes. Id. 19. Peter Brown, Developing Corporate Internet, Intranet, and E-mail Policies, 520 PLI/PAT 347, 364 (1998) (citing In re Brand Name Prescription Drugs Antitrust Litigation, No. 94C897, 1995 WL 360526 (N.D. Ill. June 15, 1995)); see also FED. R. CIV. P. 34. 20. See FED. R. CIV. P. 16, 26, 33, 34, 37, and 45. 21. FED. R. CIV. P. 34. 22. See, e.g., Arista Records LLC v. Usenet.com, Inc., 60 F. Supp. 409, 442-44 (S.D.N.Y. 2009) (imposing attorneys’ fees, costs, and adverse inference sanction for defendant’s failure to preserve data); Fox v. Riverdeep, Inc., No. 07 Civ. 13622, 2008 U.S. Dist. LEXIS 101633, at *18-20 (E.D. Mich. Dec. 16, 2008) (sanctioning defendant for failure to preserve evidence, including emails, upon receiving cease-and-desist letter). 23. See Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 644 (D. Colo. 2007) (imposing monetary sanctions and awarding costs where defendant failed to identify and preserve relevant ESI). 24. See Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. 2007) (unpublished letter decision). 25. See Gordon Partners v. Blumenthal, 244 F.R.D. 179 (S.D.N.Y. 2007) (imposing adverse inference spoliation sanction in securities fraud action because defendant corporation had the practical ability to obtain documents it needed from a non-party corporation and defendant corporation’s failure to preserve relevant email was grossly negligent).

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information system.”26 However, the application of this rule requires that the producing litigant demonstrate27 that it tried to preserve in good faith evidence it knew or should have known to be relevant to reasonably anticipated or commenced litigation.28 In addition, the amended rules address digital spoliation29 by recognizing that it can occur in various ways and result in varying penalties depending upon the facts and legal context in which the claim arises.30 C. Shifting Costly Electronic Discovery in Civil Litigation While cost has always been a discovery concern, the advent of “e-discovery” has raised such concerns to a high level, especially when ESI impacts the manner in which a case may proceed.31 Since 1970, courts have struggled to integrate the highly variable cost structure associated with producing ESI into the Federal Rules of Civil Procedure’s32 traditional discovery principles.33 Electronic discovery consultant fees can typically start at $275 per hour and costs of collecting, reviewing and producing a single email can be between $2.70 and $4 per document.34 Experts in this market estimated that in 2007, litigants would spend more than $2.4 billion on electronic discovery services 26. See FED. R. CIV. P. 37(e). Note that the good faith requirement of Rule 37(e) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. Nonetheless, this requirement is not explicit. 27. See Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn. July 16, 2007) (finding defendant’s failure to suspend document destruction after notice of litigation not good under Rule 37(f)). 28. See Columbia Pictures Industries v. Bunnell, 2007 WL 2080419, at *14 (C.D. Cal. May 29, 2007); Hynix Semiconductor v. Rambus, Inc., 591 F. Supp. 2d 1038, 1060 (N.D. Cal. 2006); W.T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984). 29. See Spoliation—Definition from the Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/spoliation (“The act of injuring, especially beyond reclaim.”). 30. See Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. 502003CA005045XXOCAI, 2005 WL 679071, at *7 (Fla. Cir. Ct. Mar. 1, 2005) rev’d on other grounds sub nom Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 955 So. 2d 1124, 1128 (Fla. Dist. Ct. App. 2007). 31. For example if the collection, review and production of ESI is cost prohibitive to asserting or defending a claim, civil litigants are forced to settle because no formal cost structure was codified into the new Federal Rules of Civil Procedure. 32. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) (holding under Federal Rules, respondent must bear expenses of discovery). The presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court’s discretion under Rule 26(c) to grant orders protecting him from ‘undue burden or expense,’ thereby precluding discovery or conditioning discovery on the requesting party’s payment of discovery costs. Id. 33. See Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 421 (S.D.N.Y. 2002) (adopting multiple factor test to allocate the costs of electronic discovery burden); In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526, at *2 (N.D. Ill. 1995) (unpublished memorandum opinion) (holding producing party bears costs because the party chose electronic storage). Compare McPeek v. Ashcroft, 202 F.R.D. 31, 33 (D.D.C. 2001) (restoring all backup tapes not necessary in every case), with Linnen v. A.H. Robins Co., 199 WL 462015, at *9-10 (Mass. Super. Ct. 1999) (imposing obligation to cease recycling backup tapes). 34. See Anne G. Fort, Rising Costs of E-Discovery Requirements Impacting Litigants, National Law Journal, March 20, 2007, available at http://www.law.com/jsp/article.jsp?id=1174307784199.

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and there is no end in sight to this growth. Only two years later, this expense had increased.35 The construct of proportionality respective to discovery requests is gaining traction with the courts. Judges and lawyers alike realize that discovery costs36 can be determinative of a litigant’s decision to litigate or settle a case.37 III. BASIC CRIMINAL ELECTRONIC DISCOVERY In the federal criminal justice system, there is no landmark case or rule which operates as a counterpart to the Federal Rules of Civil Procedure on ediscovery.38 There are examples, such as United States v. O’Keefe,39 where the federal judiciary addressed the developing influence the Federal Rules of Civil Procedure’s e-discovery standards have had on criminal litigation.40 Despite these examples, the Federal Rules of Criminal Procedure do not afford criminal defendants an established right to access ESI beyond the scope of Rule 16 (for evidence in the custody of the government) or Rule 17 (for evidence in the possession of third parties). Although the accused may argue that the spirit of the Federal Rules of Criminal Procedure provides criminal defendants with a constitutional right to access ESI in the possession, custody, and control of the prosecution (e.g., Brady), in practice, the criminal justice system is devoid of procedural tools that provide criminal defendants with automatic access to ESI in the same fashion civil litigants enjoy pursuant to Rule 26 of the Federal Rules of Civil Procedure. Certain cases are emerging, however, that clearly evidence the need for specific rules of criminal procedure relating to ESI.41 At the federal level, a criminal defendant is “entitled to rather limited discovery, with no general right to obtain the statements of the [g]overnment’s witnesses before they have testified.”42 Therefore, it is not unreasonable to assume this principle would apply to items such as email, text messages and 35. Id. 36. See FINAL REPORT

ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM (2009), available at http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm& ContentID=4030 (last visited, Sept. 17, 2009). The American College of Trial Lawyers Task Force on Discovery recently issued their final report based on their survey of the Fellows of the American College of Trial Lawyers. 37. See Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008) (denying defendant’s cost-shifting motion made after the costs had been incurred); Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008) (denying plaintiff’s motion to compel discovery of eight years of emails). 38. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) (holding under the Federal Rules, presumption is responding party bears expense of compliance). 39. 537 F. Supp. 2d 14 (D.D.C. 2008). 40. Id. (addressing the impact of the evolution of e-discovery in civil litigation on criminal litigation matters). 41. See, e.g., Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (addressing appropriate metrics in analyzing application for search warrants seeking ESI). 42. Degan v. United States, 517 U.S. 820, 825 (1996).

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other forms of ESI. In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it is relevant and “reasonably calculated to lead to the discovery of admissible evidence.”43 This imbalance places criminal defendants potentially at risk of being denied access to what may be legitimate “Brady material.”44 Without a uniform procedural rule in criminal proceedings, defendants place themselves in forums where a party’s ability to access ESI varies from court to court.45 The lack of a codified procedure in the Federal Rules of Criminal Procedure for gaining access to ESI, similar to what the Federal Rules of Civil Procedure provides, potentially places criminal defendants at a substantial disadvantage when gathering evidence.46 Unlike in civil litigation matters, where a litigant’s right to access ESI from an opposing party is codified, in criminal litigation, pre-trial exchange of ESI is not incorporated into the rules of criminal procedure. Moreover, a criminal defendant is typically at the mercy of the prosecution’s own policies as to whether to produce certain ESI evidence, as well as the manner and form of production.47 The discrepancy in how ESI is exchanged between parties to civil versus criminal proceedings may be attributable, among other reasons, to the fact that the concept of proportionality is a far more prominent consideration in civil cases than in criminal matters. Arguably, the government is not as concerned with how the cost of pursuing ESI compares with the value of the evidence likely to be derived from it. This issue is often encountered in the context of grand jury subpoenas where a target may be inclined to challenge the scope of a subpoena seeking burdensome volumes of ESI. The government may then be concerned that an over-reaching subpoena will threaten the overall viability of the government’s case; however, it is more likely than not that the subpoena will be pursued by the prosecutor until a motion to quash or amend

43. See id. For the purposes of this article, Degan is cited for comparing Rules 16(a)(2) and 26.2 of the Federal Rules of Criminal Procedure with Rule 26(b)(1) of the Federal Rules of Civil Procedure. For exceptions regarding witness statements not subject to disclosure under Rule 16(a)(2) of the Federal Rules of Criminal Procedure, see 18 U.S.C. § 3500; see also FED R. CRIM. P. 16 (regarding witness statements made when an organizational defendant is involved). 44. See Brady v. Maryland, 373 U.S. 83 (1963) (defining Brady material). Brady covers exculpatory evidence either absolving or mitigating a defendant’s criminal liability, or, in the alternative, evidence that tends to undercut the government’s case (e.g., impeachment evidence). 45. An example of where an approach to ESI evidence is likely to vary is in the context of evidence maintained by the government when investigating and prosecuting offenses derived from the Adam Walsh Child Protection and Safety Act of 2006. The Walsh Act established, among other things, a national database incorporating the use of DNA evidence collection in addition to a DNA registry that tracks convicted sex offenders with Global Positioning System technology. As particularly important laws of this nature are, it is presented here as an example of a context where a defendant’s access to the government’s electronic database could be outcome determinative for the defendant. 46. E-discovery has become more prevalent in the current-day criminal justice system. See United States v. Scarfo, 180 F. Supp. 2d 572, 574–76 (D.N.J. 2001). 47. FED. R. CIV. P. 26(f)(3) (codifying discovery of ESI).

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the subpoena is adjudicated.48 Therefore, challenging a subpoena duces tecum, for example, is a much more daunting task for a criminal defendant than is a civil litigant’s challenge to a request for production of documents by way of a protective order.49 Moreover, challenging the government’s approach to e-discovery could be a perilous endeavor for a defendant who is attempting to resolve a prosecution in order to eliminate or reduce exposure to potential penalties.50 For example, defendants may have to decide whether to challenge a grand jury subpoena or a search warrant, knowing that doing so may present the appearance of noncooperation, which could adversely affect the opportunity to enter into a satisfactory plea or deferred prosecution agreement. Likewise, many cases pursued by prosecutors are investigated in tandem (within the parameters of the laws governing parallel proceedings) with other governmental agencies that may be investigating potential civil and/or regulatory violations of federal laws (e.g., securities law, health care regulations, intellectual property guidelines, etc.).51 Therefore, the lack of common procedures among forums for the handling of ESI may adversely affect individuals who produce ESI to the government in non-criminal proceedings without knowing whether they are targets or witnesses in criminal actions. 52 As annoying as such assertions of obstacles to ESI production on behalf of the defendant may be to the prosecution, well-settled Sixth Amendment53 precedent mandates that defendants have a constitutional right to know exactly the nature and cause of the government’s case. This precept, when applied to twenty-first century practice, should involve the production (or at the very least the inspection) of ESI. 54 Defendants who do not diligently 48. FED. R. CRIM. P. 6 (setting forth grand jury procedure). 49. FED. R. CIV. P. 34 (providing rules for producing documents); FED. R. CIV. P. 26 (governing protective orders). 50. Earl J. Silbert & Demme Doufekias Joannou, Under Pressure to Catch the Crooks: The Impact of Corporate Privilege Waivers on the Adversarial System, 43 AM. CRIM. L. REV. 1225, 1230 (2006). 51. 1 JOEL ANDROPHY, WHITE COLLAR CRIME § 4:5 (2d ed. 2009) (mitigating criminal exposure in Bankruptcy Court). 52. Id. at § 7:16. Androphy wrote: [A] defendant pled guilty to a drug charge. The defendant signed a plea agreement agreeing to forfeiture of the $3,000 on his person at the time of his arrest and making no mention of the possibility of any further forfeiture. The AUSA had previously told defendant that the United States Attorney’s office had no interest in seizing defendant’s farm but that she could not speak for the IRS. After conviction, the IRS sought to forfeit defendant’s farm. The court found that, without an express warning by the United States to the defendant to the contrary, it was reasonable for defendant to rely on the original oral understanding he had with the AUSA that his farm would not be seized. Id.

53. U.S. CONST. amend. VI. 54. Nevertheless, a defendant has the general right to file an omnibus discovery motion seeking discovery corroborating the government’s case. Rosen v. United States, 161 U.S. 29 (1896) (holding defendant

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pursue ESI are at risk, especially when the indictment is facially unclear about the nature of the conduct being prosecuted, as well as and the location and nature of electronic evidence that may be central to the charge.55 Notably, if the manner in which ESI is to be exchanged between the prosecution and defense were to become more established and streamlined, evidentiary disputes in criminal investigations and prosecutions would likely be eliminated or at least minimized, and the approaches of the judicial system would be more predictable and consistent. In other words, a more effective approach to ESI in criminal matters would likely lead to parties resolving criminal matters at earlier stages in the proceedings by narrowing evidentiary issues.56 IV. CRIMINAL ELECTRONIC DISCOVERY TACTICS FOR THOSE WHO ARE POOR BUT NOT POOR ENOUGH Not all defendants have access to, let alone the financial resources to engage, e-discovery vendors in order to “cooperate” with the government and avoid indictment.57 Yet, all defendants should be entitled to build a defense and advocate for the most favorable outcome. As technology becomes ever more inextricably tied to the way people communicate58 and the way evidence develops, criminal defendants will likely seek discovery of ESI from third parties as well as the government.59 Addressing ESI is a tactical decision defendants must make when conferring with criminal defense counsel because the approach may impact the course of the case, as well as the government’s perception of whether a target is cooperating. Counsel who does not press the government effectively to produce ESI may deprive the client of an adequate defense.60 Counsel should entitled “to be informed of . . . nature and cause of . . . accusation against him”). 55. See Mosteller, Robert P., Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (2008). 56. For example, the manner of resolving discovery disputes through Rule 26(f) of the Federal Rules of Civil Procedure, which concerns conferencing civil proceedings, could provide guidance in criminal proceedings. 57. See Robert M. Barker, Andrew T. Cobb, and Julia Karcher, 52-2 BUSINESS HORIZONS (2009). 58. See, e.g., Jean-Luc Chatelain and Daniel B. Garrie, The Good, the Bad and the Ugly of Electronic Archiving, 2 J. OF LEGAL TECH. RISK MANAGEMENT 96, 97 (2007). 59. See FED. R. CRIM. P. 17(c)(1). The rule states: [a] subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. Id. See generally OFFICE OF LEGAL EDUCATION OF THE EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS (3d ed. 2009), available at http://www.cybercrime.gov/ssmanual/ssmanual2009.pdf. 60. Criminal defendants should acknowledge that although “cooperation” with the government’s

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also investigate all sources that may be available to clients for underwriting the expense of e-discovery such as directors and officers insurance.61 Criminal defendants who lack substantial financial resources necessary to retain counsel62 to explore pre-indictment relief tools63 may be financially eligible for appointment of a public defender. In other words, they must meet certain criteria under the Criminal Justice Act (CJA), which also applies to appointment of CJA “panel counsel.”64 Those criminal defendants that are unable to afford counsel prior to indictment are at a substantial disadvantage,65 particularly where a governmental investigation focuses on the seizure of ESI.66 Those defendants who are unable to retain legal counsel pre-indictment may be unable to demonstrate to the prosecution the existence of ESI that might have deterred the government from pursuing the charges prior to indictment of the matter.67 Another problem that plagues all defendants other than the super wealthy is that they generally are not able to retain legal representation pre-indictment, and thus forego the chance of potentially being able to alter their “status” with the government. For example, there are times when individuals will be first considered “witnesses” and then turn into “targets” of the prosecution as an investigation progresses. There are times when “targets” are able to cooperate with the prosecution and may be able to avoid an indictment or obtain a more favorable result as to criminal liability than if the target had not effectively communicated with the prosecution. Unfortunately, this witness-versus-target dynamic is not accessible to all. Instead, it is typically accessible to wealthier

investigation will typically assist the defendant’s potential of ingratiating oneself with the prosecution, in any given matter, this is never a guarantee, which is why such strategic decisions must be fully vetted when seeking discovery such as ESI and other forms of what may arguably be considered unconventional discovery where the context of the information is equally if not more important to the defendant than merely the contents of a communication (e.g., email versus the meta data associated with the authored communication). See generally UNITED STATES ATTORNEYS MANUAL, Title 9 (Criminal Division), available at http://www.usdoj.gov/usao/ eousa/foia_reading_room/usam/title9/title9.htm (recommending how federal prosecutors handle discovery in the course of building a criminal case). 61. See Press Release, U.S. Dep’t of Justice, Fiat Agrees to $7 Million Fine in Connection with Payment of $4.4 Million in Kickbacks by Three Subsidiaries under the U.N. Oil for Food Program (Dec. 22, 2008) (on file with author). 62. See Caroline Wolf Harlow, Ph.D., Defense Counsel In Criminal Cases (Bureau of Justice Statistics) (Nov. 2000), available at http://www.ojp.gov/bjs/pub/pdf/dccc.pdf (noting “[i]ndigent defense involves use of publicly financed counsel; defendants unable to afford private counsel”). The report states that “[a]t the end of their case approximately 66% of felony Federal defendants and 82% of felony defendants in large State courts were represented by public defenders or assigned counsel.” Id. 63. JOEL ANDROPHY, 1 WHITE COLLAR CRIME § 2:3 (2d ed.) (explaining how federal courts regulate the manner in which grand jury investigations are conducted). 64. See 18 U.S.C. 3006A(a)(1) (ensuring adequate representation of federal criminal defendants). 65. For a detailed explanation of the importance of the criminal prosecutorial process and an accompanying flowchart, see The Justice System: What is the Sequence of Events in the Criminal Justice System, http://www.ojp.usdoj.gov/bjs/justsys.htm#entry (explaining criminal procedure subsequent to arrest). 66. Id. 67. Id.

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litigants because CJA counsel is appointed by courts post-indictment, and litigants lacking financial resources are unlikely to afford the substantial cost of pre-indictment legal representation. If evidentiary issues surrounding ESI are at the heart of a criminal investigation, the subject or witness of such an investigation can substantially benefit from the representation of legal counsel in the “pre-indictment” stages. The reality is that a substantial number of defendants cannot afford legal counsel, and as technology becomes more involved in legal matters, those who wish to cooperate with the government in areas such as e-discovery may not know how to do so effectively due to a lack of financial and technological resources.68 V. CONSTITUTIONAL IMPLICATIONS OF THE E-DISCOVERY STATUS QUO Historically, criminal defendants have been concerned with issues pertaining to Fourth Amendment protections of their persons,69 Fifth Amendment protections of statements they made to the government,70 and Sixth Amendment protections to their right to challenge third-party statements made to the government.71 The following are some examples of constitutional issues counsel should consider where ESI may be central to the procedural aspects of a defense. A. Fourth Amendment & Electronic Discovery The Fourth Amendment protects individuals from unreasonable governmental searches and seizures of their property. Like any other business entity, electronic communications are used by modern day law enforcement. A major tenet of due process is that all individuals prosecuted in the United States enjoy a reasonable expectation of privacy surrounding their person and personal effects. The due process principle is triggered whenever the government oversteps its bounds and improperly seizes evidence. E-discovery is especially fertile ground for motions to suppress because ESI is dynamic and can be fragile, so its mishandling may unlawfully interfere with a defense. A Fourth Amendment challenge is triggered when: (1) the challenged

68. The fact that the average defendant may not have the resources to retain an attorney pre-indictment where e-discovery is central to the government’s case-in-chief raises critical questions as to the constitutionality of such procedural disadvantages faced by the criminal defendant with limited financial resources for building a defense in such cases, particularly where traditional challenges to the presentment of evidence to the grand jury could be raised with the court had the defendant been represented by counsel during the investigation phase of a matter. See In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (9th Cir. 1985); In re Grand Jury Investigation of Lance, 610 F.2d 202 (5th Cir. 1980); In the Matter of the Special April 1977 Grand Jury, 587 F.2d 889, 891-92 (7th Cir. 1978); Westin v. McDaniel, 760 F. Supp. 1563 (M.D. Ga. 1991), aff’d, 949 F.2d 1163 (11th Cir. 1991). 69. See Smith v. Maryland, 442 U.S. 735 (1979). 70. See Miranda v. Arizona, 384 U.S. 436 (1966). 71. See Crawford v. Washington, 541 U.S. 36 (2004).

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intrusion is the product of governmental action;72 (2) the intrusion breaches society’s objectively reasonable expectation of privacy;73 and (3) the intrusion breaches the legitimate expectations of privacy of the individual in question.74 The Supreme Court has affirmed that defendants do not maintain a reasonable expectation of privacy in information voluntarily revealed to third parties.75 A warrant is required before every search or seizure, “subject only to a few specifically established and well-delineated exceptions.”76 Most targets of a criminal investigation are not privy to information from inter-governmental agency efforts, such as the government’s motive in issuing administrative subpoenas that may be related to a parallel proceeding, the existence of which the target is not yet aware. 77 Defendants must be cognizant of why an agency is seeking certain ESI through discovery tools available to it in a civil litigation or regulatory proceeding, and whether such forums have been pursued as a pretext for building a criminal prosecution.78 1. Valid Evidence for Search Warrant Targets of criminal prosecutions should ascertain whether the government obtained evidence pursuant to a valid search warrant, especially when the government seizes ESI based on an affidavit that did not appropriately (or even worse, truthfully) describe the places to be searched and items to be seized from an information system.79 This challenge, known as a Franks Hearing, is advanced by defendants attacking the truthfulness of the facts contained in an officer’s statements made to obtain a search warrant.80 In order to be entitled to a Franks hearing, a defendant must make a substantial preliminary showing that the affidavit contains a false statement made by the affiant law 72. actors). 73.

See Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (recognizing public school teachers are government U.S. CONST. amend. IV. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Id.

74. ANDREA K. GEORGE, SEARCHES, SEIZURES AND STATEMENTS: THE BUSY LAWYER’S HANDBOOK ON THE 4TH, 5TH

& 6TH AMENDMENTS (Federal Defender’s Office, District of Minnesota) (Updated October 25,

2007).

75. Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). 76. Katz v. United States, 389 U.S. 347, 357 (1967). 77. See United States v. Stringer, 408 F. Supp. 2d 1083, 1089-90 (D. Or. 2006) (dismissing indictments due to DOJ’s pretextual use of SEC civil investigation to develop case). 78. Id. 79. Franks v. Delaware, 438 U.S. 154 (1978). 80. The Franks test not only applies to cases where false information is included in an affidavit, but also when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

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enforcement agent, who either knowingly and intentionally made the false statement, or did so with reckless disregard for the truth.81 In addition, for a defendant to prevail in a Franks hearing, the false statement must be shown to have been necessary for the court to find probable cause to issue the warrant.82 2. Fourth Amendment and Impeachment Evidence ESI is not only an area of discovery that is likely to be implicated in the Franks hearing context. Issues relating to ESI also come into play when a defendant is forced to challenge whether the prosecution, regardless of good or bad faith, failed to produce impeachment evidence of its witnesses pursuant to Giglio v. U.S.83 Giglio held that “[w]hen reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [the] general rule” that “suppression of material evidence justifies a new trial irrespective of good faith or bad faith of the prosecution.”84 The Supreme Court reversed Giglio’s conviction because the prosecution did not disclose that it had granted immunity to a witness upon whose testimony the prosecution was heavily dependent to corroborate its case. With the increasing use of email, digital media, and other forms of technology, scenarios where criminal defendants could determine the impeachment utility of electronic evidence in the custody of the government but are unable to make an offer of proof to the court without an opportunity to first review the ESI are likely to arise more frequently. For example, prior iterations of the same data (e.g., meta data) may carry testimonial evidence subject to impeachment at trial, which arguably may provide standing for a Giglio challenge. Currently, criminal procedure does not provide a codified rule addressing an issue of this nature. Instead, federal courts are guided by Rule 16 of the Federal Rules of 81. To obtain a “Franks hearing,” the defendant must make a “substantial preliminary showing” that a particular portion of the warrant affidavit is false. See Franks v. Delaware, 438 U.S. 154, 171 (1978). This is usually accomplished by an “offer of proof” through affidavits or otherwise. Id. When the defendant is unable to produce such evidence, he or she should explain the absence of such evidence to the satisfaction of the court. Id. 82. Id. In some cases involving ESI, defendants are typically limited to accessing e-discovery that the prosecution intends to use in its case-in-chief. FED. R. CRIM. P. 16. The protections provided by traditional omnibus pretrial discovery motions in the criminal justice system do not protect modern-day defendants, as the context surrounding particular forms of ESI have become much more prevalent in building one’s defense. The Franks hearing protection against a violation of the Warrant Clause is a good example of a law enforcement official applying for a search warrant and neglecting to properly discharge his duty of including all known facts in the affidavit in support of the warrant sought. See United States v. Leon, 468 U.S. 897 (1984). As law enforcement communicate among themselves more regularly through electronic mediums such as email, law enforcement officials will likely rely on representations made in such mediums when applying for search warrants, and defendants should be able to obtain those internal communications. This should include identifiable characteristics associated with them (e.g., meta data) that may affect the veracity of a search warrant affidavit, which supports a defendant’s ability to secure a Franks hearing. 83. Giglio v. United States, 405 U.S. 150 (1972). 84. Id. at 154.

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Criminal Procedure, which does not provide a defendant an automatic right to ESI. As a result, defendants may find themselves in an uphill battle in order to convince courts that prosecutors do not adequately meet their Brady obligation by producing only a mirrored or hard copy version of ESI during discovery rather than files in native format.85 B. E-Discovery and the Fifth Amendment An individual’s right against self-incrimination under the Fifth Amendment is well established. The constitutional concerns regarding protection of ESI under the Fifth Amendment are the same as those applicable when a defendant is the subject of a criminal investigation and there is a question as to whether the subject should voluntarily speak to law enforcement officials, knowing that such statements may be used against the individual.86 When analyzing the reasoning invoked by the Supreme Court in the cases discussed below, it is conceivable to imagine a scenario where a defendant may not have an act-of-production privilege with respect to a hard copy document, but still may be able to assert the privilege with respect to the work product contained therein (i.e., meta data). This consideration is particularly applicable when it appears evident that the data sought is likely to be used by the government at trial as an adopted admission by the defendant that is testimonial in nature. The Supreme Court has addressed whether the compelled production of records pursuant to a subpoena duces tecum violates the Fifth Amendment privilege against self-incrimination.87 The legal precedents discussed below may be applied to the ESI sought by the prosecution in criminal proceedings. Therefore, counsel must exercise extreme care on a case-by-case basis, as a client’s admissions may be embedded in ESI, and therefore not readily apparent.88 Starting as far back as 1886, the Supreme Court held in Boyd v. U.S. that the compelled production of invoices violated the Fourth Amendment right against unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.89 Almost a century later, the Supreme Court decided Couch v. United States in the context of the Internal Revenue Service 85. Various governmental agencies are beginning to develop their own internal protocol with respect to the exchange of e-discovery between parties. See UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ENFORCEMENT MANUAL § 3.2.6.4.1.2 (discussing guidance and suggestions on how the SEC should maintain files and records produced in electronic formats in investigations). The Enforcement Manual generally discusses how the SEC is approaching the pursuit and exchange of e-discovery. 86. Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding voluntariness determined under totality of circumstances test). 87. See Fisher v. United States, 425 U.S. 391 (1976) 88. See United States v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008) (denying defendant’s motion to suppress privileged email and granting government’s application to disclose privileged email). 89. Boyd v. United States, 116 U.S. 616 (1886).

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summoning a taxpayer’s records from her accountant.90 The defendant taxpayer intervened in a summons enforcement proceeding and claimed a Fifth Amendment privilege.91 The Court held no Fifth Amendment privilege existed for documentation in the custody of the taxpayer’s accountant because the factor of personal compulsion against the accused was lacking; it was the accountant, not the defendant who was ordered to produce the documents to the government. 92 The Supreme Court faced the identical issue raised in Couch in Fisher v. United States, except here the third party record holder was the taxpayer’s attorney as opposed to the taxpayer’s accountant. 93 The Court held that as far as the element of “personal compulsion” was concerned, the attorney in Fisher was in the same posture as the accountant in Couch.94 However, the Court held that the attorney-client privilege may still protect records in the hands of the attorney.95 It is in Fisher that the Supreme Court incorporated the “act of production” doctrine into Fifth Amendment constitutional jurisprudence. The Court held that the physical production of the documents alone may contain an element of “compulsion” and may be “incriminating” irrespective of the content of the documents. In Fisher, the Court concluded that the production of documents would not be incriminating because the authentication of the documents was a “foregone conclusion.”96 In United States v. Doe,97 the grand jury conducted “an investigation of corruption in the awarding of county and municipal contracts.”98 The government served a subpoena on the target, the owner of several sole proprietorships, seeking virtually all of his business records. The Supreme Court first observed that it reserved the issue in Fisher of whether the tax records would have been protected in the taxpayer’s hands, as the Fifth Amendment only protects “the person asserting the privilege from compelled self-incrimination.”99 The Court reasoned that, “where the preparation of business records is voluntary, no compulsion is present.”100 The Supreme Court further held that, “[a]lthough the contents of a document may not be privileged, the act of producing the document may be.”101 As the Supreme Court stated in Fisher: “Compliance with the subpoena tactically concedes the existence of the papers demanded and their possession or control by the 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101.

Couch v. United States, 409 U.S. 322 (1973). Id. Id. at 328-29. Fisher v. United States, 425 U.S. 391, 393 (1976). Id. at 398. Id. at 404-05. Id. at 412-13. 465 U.S. 605 (1984). Id. at 606. Id. at 610. Id. United States v. Doe, 465 U.S. 605, 612 (1984).

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taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena.”102 Additionally, the Court considered how the act of production would affect the taxpayer, and concluded that the act of production would have limited testimonial value and would not operate to incriminate the taxpayer.103 Unlike Fisher, the Doe Court explicitly found that the act of producing the documents would result in testimonial self-incrimination.104 The “act of production” doctrine, first addressed in Fisher and expanded upon in Doe, calls into question the remaining viability of the holding in Bellis v. United States105 (i.e., that a representative of a corporation has no Fifth Amendment privilege against providing corporate documents).106 The Second, Third, Fourth and D.C. Circuits have held that the “act of production” doctrine applies to corporate representatives.107 The First, Fifth, Sixth, Eighth, Ninth and Tenth Circuits have rejected the application of the act of production doctrine as to corporate representatives.108 Notably, the Eleventh Circuit has ruled both ways regarding whether the production of documents can be considered compelled self-incriminating testimony.109 A further dilemma ESI has created for defendants seeking Fifth Amendment protection is presented in the context of cooperating with the prosecution during an investigation (e.g., grand jury subpoena, regulatory proceeding, etc.) by forensically reviewing one’s computer hardware. In many instances, the government will be reluctant to stipulate on “search terms” for ESI responsive to their requests, which places the subject of the investigation in a Catch-22 between appearing adversarial and suffering the consequences, or reaping the potential benefits of cooperation and fearing non-production of ESI that was not done with the intent to obstruct an investigation. In other words, some

102. 103. 104. 105. 106.

Fisher v. United States, 425 U.S. 391, 410 (1976). Id. at 410-11. United States v. Doe, 465 U.S. 605, 613 (1984). 417 U.S. 85 (1974). See id. (holding representative of partnership has no Fifth Amendment privilege against providing partnership documents). 107. See In re Sealed Case, 832 F.2d 1260, 1279 (D.C. Cir. 1987); United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir. 1986); United States v. Sancetta, 788 F.2d 67, 74 (2d Cir. 1986); In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 57-59 (2d Cir. 1985); In re Grand Jury Matter, 768 F.2d 525, 529 (3d Cir. 1985) (en banc). 108. See In re Grand Jury Proceedings, 814 F.2d 190 (5th Cir. 1987), judgment aff’d, 487 U.S. 99, 108; In re Grand Jury Subpoena, 784 F.2d 857, 861 (8th Cir. 1986), cert. granted, 479 U.S. 811, cert. dismissed, 479 U.S. 1048; In re Grand Jury Proceedings, 771 F.2d 143, 148 (6th Cir. 1985); In re Grand Jury Subpoena, 767 F.2d 1130, 1131 (5th Cir. 1985); In re Grand Jury Proceedings United States, 626 F.2d 1051, 1053 (1st Cir. 1980); see also United States v. Malis, 737 F.2d 1511, 1512 (9th Cir. 1984); In re Grand Jury Proceedings, 727 F.2d 941, 945 (10th Cir. 1984). 109. Compare In re Grand Jury Subpoena Duces Tecum (Ackerman), 795 F.2d 904 (11th Cir. 1986) (a corporate representative has no act of production privilege), with In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569 (11th Cir. 1987) (sole shareholder corporate representative may have an act of production privilege).

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defendants fear entrapment and are suspicious of the government’s intention in not reciprocally collaborating on search terminology—particularly in prosecutions involving high volumes of data.110 Twenty-first century criminal targets, particularly businesses or individuals operating among many other parties that routinely communicate by electronic means, are likely seeking a sense of assurance that being a target of an investigation does not preclude one from being able to meet the government’s expectation of cooperation when it comes to seeking responsive ESI in good faith. As discussed above, the federal courts are split as to whether individuals should be compelled to produce documentation they have created for personal use. The greatest challenge for defendants is that the Supreme Court has found that custodians of business records do not have standing to assert the Fifth Amendment privilege.111 This is pertinent to the production of ESI when the defendant personally created information that resides within the custody of a third party (e.g., internet service provider or web client email services, etc.). C. Criminal E-discovery Impacts the Sixth Amendment Right to Counsel As eloquently stated in the opinion of United States v. Stein,112 “the Sixth Amendment right to counsel typically attaches at the initiation of adversarial proceedings—at an arraignment, indictment, preliminary hearing, and so on . . . [b]ut the analysis can not end there.”113 Once the Sixth Amendment right to counsel attaches, the government may not deliberately elicit an incriminating response from a defendant in a conspicuous fashion by uniformed police officers or by surreptitiously using informants or undercover law enforcement personnel.114 This legal principle, referred to as the Messiah doctrine, applies irrespective of whether the target of a criminal investigation is in custody or being subjected to interrogation.115 It is important to note that no overriding influences, either implied or otherwise inferred by the circumstances, have to 110. FED. R. CRIM. P. 12.3(a); see United States v. Giffen, 473 F.3d 30, 41 (2d Cir.2006). In Giffen, the court stated: The defense of entrapment by estoppel can be established without the defendant having received actual authorization. It depends on the proposition that the government is barred from prosecuting a person for his criminal conduct when the government, by its own actions, induced him to do those acts and led him to rely reasonably on his belief that his actions would be lawful by reason of the government’s seeming authorization. 473 F.3d at 41. 111. Braswell v. United States, 487 U.S. 99 (1988). 112. 435 F. Supp. 2d 330 (2006). 113. Id. 114. Messiah v. United States, 377 U.S. 201 (1964). 115. Id. Defendants can raise Messiah issues in the context of governmental investigations surrounding the analysis of ESI, especially where the government is seeking to investigate a target on matters that may be collateral to the present case but inextricably tied to it by ESI (e.g., email communications). See id.

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be present for the Messiah doctrine to be triggered.116 Criminal defendants and their counsel should recognize that the Sixth Amendment applies to specific offenses, which permits the government to seek discovery of ESI in one matter and then use that information to interrogate the defendant on another matter.117 The issue of criminal investigators repeatedly visiting the same “forensic well” to acquire information that may be otherwise protected pursuant to Messiah should be addressed by criminal defendants and their counsel when determining whether to challenge compound forensic efforts by governmental agencies. 1. Procedural Implications the Current State of E-Discovery Has On Sixth Amendment Protection The reality is that electronic evidence is no longer simply “evidence that is electronic” regardless whether the legal matter is civil or criminal.118 ESI is an independent category of evidence, requiring special procedures for handling what the traditional rules of criminal procedure do not properly address.119 Rule 16(a)(1)(E), the current pre-trial discovery rule in federal criminal proceedings, states as follows: (E) Documents and Objects. Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (I) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or 120

(iii) the item was obtained from or belongs to the defendant.

The rule identifies the term “data,”121 but it falls short in defining electronic discovery with any further clarity. For instance, the language of Rule 16 does not explain the manner or mechanisms through which ESI is to be exchanged between the prosecution and defense, and the rule is devoid of direction on how 116. See Welsh S. White, Police Trickery in Inducing Confessions, 127 U. PA. L. REV. 581, 602-04 (1979) (discussing scope of Messiah decision). 117. See United States v. Stierhoff, 2007 WL 763984 (D.R.I. Mar. 13, 2007) (holding government exceeded scope of consent searching defendant’s computer). In Stierhoff, the arrest was for stalking and the information encountered was evidence of an “offshore” file opened by investigator without warrant. Id. 118. See 8A WRIGHT & MILLER, FED. PRAC. & PROC. CIV.2D § 2218. 119. See BARBARA J. ROTHSTEIN, RONALD J. HEDGES, & ELIZABETH C. WIGGINS, MANAGING DISCOVERY OF ELECTRONIC INFORMATION: A POCKET GUIDE FOR JUDGES (2007), available at http://www.fjc.gov/public /pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf. 120. FED. R. CRIM. P. 16(a)(1)(E). 121. FED. R. CRIM. P. 16.

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ESI is to be made accessible for review and analysis for the criminal defendant.122 Further complicating the matter is that the government is entitled to build its case and develop work product, as it is the party burdened with proving its case beyond a reasonable doubt,123 which in the digital age inevitably encompasses ESI assuming a testimonial function (e.g., meta data contained in business records). While the prosecution should not be subjected to unnecessary and “vexatious fishing expeditions” by defendants, and should be required to produce Brady material and discovery under the Jencks Act124 and other safeguards, defendants have the Sixth Amendment right to confront witnesses against them by timely moving the court to compel the government to produce statements that may be useful for impeachment of the prosecution’s witnesses.125 For instance, if the government neglected to produce pertinent ESI that contained testimonial evidence (e.g., email, voicemail, SMS text messages, internet postings, etc.), which the prosecution intended to use against the defendant at trial, it would be reasonable for a defendant to assert that such electronic evidence may be testimonial in nature, thereby impacting the defendant’s confrontational rights and ability to assert a viable Jenks Act violation. Rule 16 confines e-discovery to what the court itself believes is “material” to the defense in reliance upon the prosecution’s representations of what it intends to use in its case-in-chief.126 Some information subject to production under the Jencks Act may also be subject to disclosure as Brady material, thus requiring production of ESI prior to the framework set forth by the Jencks Act. Irrespective of particular acts, a defendant’s ability to access ESI in criminal prosecutions today is an unmitigated mess. The construct of proportionality to determine cost shifting and reasonableness, upon which a great deal of civil litigation rests, falls short because of various criminal acts and the Fourth,127 Fifth128 and Sixth129 Amendments. At a minimum, the Federal Rules of Criminal Procedure must be amended to provide a procedural mechanism that reconciles what the court believes is “material” to a defense in terms of access to ESI with what is ultimately required by the previously mentioned acts, or others, and the Fourth,130 Fifth131 and Sixth132 Amendments. 122. Id. 123. See, e.g., Taylor v. Kentucky, 436 U.S. 478 (1978); In re Winship, 397 U.S. 358 (1970); People v. Antommarchi, 80 N.Y.2d 247, 252-253 (1992). 124. 18 U.S.C. § 3500 (2006). 125. United States v. Carter, 613 F.2d 256 (10th Cir. 1980). 126. FED. R. CRIM. P. 16 (a)(1)(E)(1). 127. U.S. CONST. amend. IV. 128. U.S. CONST. amend. V. 129. U.S. CONST. amend. VI. 130. U.S. CONST. amend. IV. 131. U.S. CONST. amend. V. 132. U.S. CONST. amend. VI.

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VI. THE NECESSITY FOR A “BALANCING TEST” TO GOVERN E-DISCOVERY IN CRIMINAL PROCEEDINGS Prosecutorial discretion requires the government to produce only what it believes is central to its case-in-chief, or what is set out in the Brady material.133 In the digital arena, this grants the prosecutor a substantial advantage over defendants because the current rules permit the government the latitude to produce emails out of context.134 For example, in a criminal trial the prosecution may seize and forensically search and discover an email string and produce only the incriminating email from the email thread. In essence, the defendants who lack the necessary fiscal resources have no ability to perform the forensic analysis necessary to find the string and present the context of the email communication. Of course, improper handling of ESI by the prosecutor could adversely affect the defendant, and foster a loss of trust by the public in the office of the prosecutor. Currently, an indigent defendant may not be in a position to successfully move the court for funds necessary for electronic discovery. One may argue this is because a court will grant such a motion under existing jurisprudence only if a defendant can demonstrate the need for the court’s intervention in order to force the government to produce ESI, which may be similar to the analysis applied to an order for a bill of particulars.135 Today, a defendant has little ability to meet this burden in the electronic space because of the monetary requirement to discover such evidence to produce to a court.136 Consequently, state and federal courts should, where appropriate, modify the current requirements a defendant must meet when electronic information is pivotal to the prosecution’s case. A. Reasonable Indicia of Review to Determine Cost Shifting for Discovery One possible modification to the rule would have the court apply a reasonable indicia requirement to be shown by a criminal defendant in order to trigger the state’s obligation to cover the defendant’s cost (using a national pricing matrix to calculate cost). The matrix would incorporate a “government” rate and a “private” rate to which the government commits when it requests a grand jury target or defendant to retain a service that the government benefits from during an investigation of a case. Moreover, if a defendant is convicted, the prosecution may make a motion to the court seeking restitution from the defendant for the fees incurred with respect to the digital 133. See Brady v. Maryland, 373 U.S. 83 (1963) (holding suppressing evidence favorable to accused violates due process where material to guilt or punishment). 134. See supra Section IV (describing criminal electronic discovery tactics). 135. FED. R. CRIM. P. 7(f). 136. See John Bace, Cost of E-Discovery Threatens to Skew Justice System, GARTNER RAS CORE RESEARCH NOTE G00148170 (April 2007).

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evidence. Here, a defendant can assert an affirmative defense to the court, that the evidence was critical to the defense. B. Streamline Exchange of ESI in Criminal Proceedings Inasmuch as ESI (e.g., cell phone evidence, wiretaps, cybercrime, etc.) is now central to many criminal proceedings, there must be a mechanism in place whereby the exchange of such information is streamlined to the fullest extent possible. One solution may be for the courts to promulgate a legal interpretation of Rule 16 that is instructive for the parties to future cases, in much the same manner in which Zubulake137 influenced cost-shifting protocol for civil litigants. Importantly, current defendants are in dire need of pre-trial discovery tools that incorporate a “reasonableness” standard into complex criminal discovery matters,138 as opposed to the traditional rules that make novel discovery arguments (such as the production of ESI and the costs associated) difficult for defendants to advance. Moreover, the government should not have carte blanche when it comes to driving up e-discovery costs during its initial investigation of a matter as leverage for compelling cooperation. Therefore, similar to the spirit of a Franks hearing, a solution may be for the court to conduct, upon motion of a defendant, a hearing to determine whether the prosecution’s request for ESI is reasonable, the ESI is unavailable from alternative less restrictive means, the request is made in good-faith, and the request is constitutional. In these situations, the court should use the government rate from the aforementioned rate matrix and apply the other rate accordingly. VII. PROTECTING AND ACCESSING ESI IS MORE CHALLENGING THAN IT SHOULD BE FOR 21ST CENTURY CRIMINAL DEFENDANTS The rapidly growing role of ESI in criminal prosecutions requires that counsel be conversant with this type of evidence in criminal proceedings. Otherwise, a criminal defendant may be deprived of access to effective assistance of counsel. In civil proceedings, ESI is a cost issue. In criminal proceedings, failure to obtain ESI may result in the client’s loss of liberty. Despite the burden and costs of electronic discovery, the courts and parties cannot escape the fact that technology governs the way members of society communicate. The criminal justice system must acclimate itself to the realities of the role of ESI in proceedings in order to ensure that trials are fully and fairly presented in accordance with all protections afforded to defendants under the law. 137. See Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). 138. See, e.g., Hon. Maureen Duffy-Lewis and Daniel B. Garrie, Dancing in the Rain: Who Is Your Partner in the Corporate Boardroom?, 25 J. MARSHALL J. COMPUTER & INFO. L. 267, 271 (2008).

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The government can essentially issue grand jury or administrative subpoenas for ESI in addition to other statutory mechanisms (e.g., ECPA), while a criminal defendant must seek the court’s endorsement for pretrial third-party discovery.139 The Supreme Court has stated that the government should be permitted to fetter out information in order to protect the people, and unless a valid legal privilege is found, “[n]o pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”140 The reality faced by the legal system in general is that technology is playing a much greater role in the interpretation, use, and admissibility of evidence—in particular, electronic evidence—in nearly all complex criminal cases. Although it is the prosecution’s burden to prove its case, the defendant should not be forced to comply with historical Rule 16 precedent, rendered when access to ESI was not central to the defense, while at the same time subjected to the modernization of prosecution. It is noteworthy that in civil cases either party can issue Rule 45 subpoenas pursuant to the Federal Rules of Civil Procedure, which may only be challenged by the recipient. Alternatively, in criminal proceedings, a defendant must pursue non-party discovery via Rule 17 of the Federal Rules of Criminal Procedure, which states, in part, the following: (c) Producing Documents and Objects. (1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may 141 permit the parties and their attorneys to inspect all or part of them.

A defendant’s ability to access ESI in the custody and control of a thirdparty witness may likely be essential to establish certain defenses; however, in order to enjoy the authority of Rule 17, a target will likely have to be subjected to an ongoing prosecution. In contrast, Rule 45 of the Federal Rules of Civil Procedure is a fact-collecting pretrial discovery tool that can be utilized upon the filing of a complaint and typically does not require judicial endorsement. This is a useful tool in the modern world of electronic communications and data storage, which is why Rule 45 has been amended over time to provide a party reasonable access to ESI that supports a claim or defense and is not unduly burdensome on the producing non-party.142 139. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.). 140. Branzburg v. Hayes, 408 U.S. 665 (1972) (quoting 8 J. WIGMORE, EVIDENCE § 2286, at 528 (McNaughton rev. 1961)). 141. FED. R. CRIM. P. 17. 142. See generally FED. R. CIV. P. 45 advisory committee note.

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Contrary to civil litigants, criminal defendants are more substantially confined with respect to third-party discovery, and are at the mercy of judicial discretion concerning discovery from the government as provided by Rule 16 as well as discovery from third parties as provided by Rule 17. Courts must begin to more uniformly recognize the role ESI assumes in particular criminal matters and a defendant’s ability to gain access to it from non-parties, in addition to the prosecution. This would ensure that defendants can fully build all constitutional and non-constitutional legal defenses, as well as a basis to assert procedural mechanisms, such as a motion to suppress.143 VIII. CONCLUSION The criminal justice system needs a means to balance a defendant’s right to build a defense involving ESI with the government’s resources for marshalling ESI in support of its case-in-chief. An argument can be made that this can be accomplished through the adoption of a rule that provides the defense with an opportunity to move the court to hear criminal discovery matters surrounding ESI. The judicial system must give special consideration to the production of ESI sought from and by a defendant, beyond the consideration given to requests for production of non-ESI, in order to ensure that constitutional rights are not compromised during e-discovery.

143. See FED. R. CRIM. P. 12, 41.

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Police car: Leslie78, Shutterstock|cell phone: bizoon, 123rf|Keyhole: Zoya Fedorova, 123rf

US v. Flores-Lopez: Does the Phone Booth Now Reside Inside the Phone?

ebruary 29, 2012, was a novel day because of the decision issued by the U.S. Court of Appeals for the Seventh Circuit in United States v. Flores-Lopez.1 Justice Richard A. Posner authored the opinion on behalf of the three-judge appellate panel, holding that a search of the defendant’s cell phone — without a warrant for the purpose of recovering its phone number — did not violate the Fourth Amendment’s Warrant Clause.

F

The Facts Flores-Lopez involved the arrest and federal criminal prosecution of defendant Abel Flores-Lopez for, among other charges, distribution of methamphetamine. The prosecution built its case on an undercover controlled purchase arranged through a co-defendant, Alberto Santana-Cabrera, who was also charged for acting as the liaison between Flores-Lopez and an undercover agent posing as the buyer. Flores-Lopez was charged with (1)

possession with intent to distribute 500 grams or more of methamphetamine, and (2) possession of a firearm in furtherance of a drug trafficking crime.2 Law enforcement agents seized three cell phones from the truck that Flores-Lopez used to transport and supply the meth to Santana-Cabrera. After arresting Flores-Lopez, the government conducted a warrantless search of three cell phones that had been seized from the pickup truck. Law enforcement authorities conducted the searches to determine the telephone number associated with each mobile phone. As a result of finding the telephone numbers, the government subpoenaed cell phone records containing historical calling activity among the phones and used it as evidence corroborating co-conspiratorial conduct. The court determined that it is impractical for law enforcement to “traipse” around with digital forensics hardware, and that remote wiping capabilities create an exigency that excludes cell phone searches from the Fourth Amendment. We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual. We can certainly imagine justifications for a more extensive search. The arrested

BY DANIEL K. GELB

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Copyright 2012, National Association of Criminal Defense Lawyers. Reprinted with permission for educational purposes only.

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The Concepcion Case The Seventh Circuit presents several analogies that delve into unchartered and dangerous legal waters. First, the court states that searching a mobile phone for its telephone number is permissible under United States v. Concepcion.4 In Concepcion, the defendant consented to and signed a form permitting DEA agents to search his apartment. The agents discovered and seized cocaine to which charges the defendant pleaded guilty.5 At the time of Gamalier Concepcion’s arrest, agents seized a key from his person, which they matched with a mailbox assigned by the landlord to defendant’s apartment. One of Concepcion’s keys opened the outer door of the building. After entering the common area, the agents used the key to unlock apartment 1C. The agents opened the door an inch, then closed and locked it without looking inside. According to the district court, neither the entry into the common area nor the insertion of the key into the lock was an unreasonable search. The court affirmed the trial court’s denial of defendant’s reserved suppression argument. Concepcion, who was not hiding anything in the lock (an unlikely repository for cocaine or a diary, although perhaps James Bond could use it for a W W W. N A C D L . O R G

microdot), had no interest other than the identity of his apartment. Although the owner of a lock has a privacy interest in a keyhole — enough to make the inspection of that lock a “search” — the privacy interest is so small that the officers do not need probable cause to inspect it. Because agents are entitled to learn a suspect’s address without probable cause, the use of the key to accomplish that objective did not violate the Fourth Amendment.6 The court in Flores-Lopez relies upon Concepcion, which differentiated the matching of a key in Concepcion from the unlawful search of a defendant’s stereo equipment (i.e., a turntable) for serial numbers implicating defendant in a past armed robbery under the U.S. Supreme Court case of Arizona v. Hicks.7 In Hicks, police officers entered an apartment while investigating a shooting. During a warrantless search, an officer flipped over a turntable in order to read and record a serial number on the bottom. The Court concluded that turning over the stereo equipment to read the serial number constituted a search. The analogy the Seventh Circuit draws between Concepcion and FloresLopez is ironic, wherein it seems opening a cell phone to look for its telephone number is strikingly similar to turning over a piece of stereo equipment to search for a serial number. How can the Seventh Circuit find that searching a mobile phone’s number is not intrusive when the U.S. Supreme Court has found over-intrusion when turning over a piece of stereo equipment for a serial number?

A Trivial Act? The Seventh Circuit has found that searching for a subscriber’s cell phone number is ministerial and nonintrusive, and therefore, not rising to the level that requires a warrant. However, as far back as the last six months of 2009, more than two of every nine adults lived in wirelessonly households.8 The statistic of wireless-only telephone users is rapidly increasing. Wireless association CTIA has estimated that 31.6 percent of households in the United States are wireless-only.9 For many cell phone users, the mobile handheld contains their “life,” such as contact, medical, and financial information. Therefore, the reasoning of Katz v. United States should control in the cell phone context of searching for cell phone con-

tent — irrespective of whether or not the content seized by the government is “trivial.”10 For example, if a defendant has a mobile application on a smartphone providing access to statutorily protected data in the “cloud” such as bank accounts or medical records, it seems clear that the defendant has an actual (subjective) expectation of privacy. The U.S. Supreme Court even intimated the following in Quon v. City of Ontario: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy [in the employee-employer context]. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.11

U.S. V. FLORES-LOPEZ

suspect might have prearranged with co-conspirators to call them periodically and if they didn’t hear from him on schedule to take that as a warning that he had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber identity module) cards, each of which assigns a different phone number to the cell phone in which the card is inserted, and replace the SIM card each day, a police officer who seizes one of the cell phones will have only a short interval within which to discover the phone numbers of the other conspirators. … The officer who doesn’t make a quick search of the cell phone won’t find other conspirators’ phone numbers that are still in use. But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.3

The exponential growth of cell phone usage in the United States, coupled with the fact that many users insure their handhelds, store personal information on them (e.g., notes, pictures, text messages, etc.), and subscribe to mobile backup or redundancy services clearly evidences that society is prepared to objectively recognize a reasonable expectation of the right to privacy in electronically stored information (“ESI”) stored on one’s mobile device.12 Text messages — and their associated data — have been treated as private, and therefore deserving Fourth Amendment protection. The entire technological mechanism by which text messages operate between cell phone subscribers to the service is through the telephone number associated with the user. The subjectivity prong of Katz is not so clear cut when it comes to historical cell phone data seized from the defendant. For example, in Commonwealth v. Pitt, a Massachusetts Superior Court judge recently ruled that historical cell site location data is the kind of information society is ready to adopt as being private, and therefore, protected from unlawful encroachment under the Fourth Amendment.13 In other words, individuals do not expect their whereabouts to be logged simply based on the phone calls they make. I - A - 75 M AY 2 0 1 2

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U.S. V. FLORES-LOPEZ

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According to Flores-Lopez, a cell phone user arguably does not have a privacy interest requiring Fourth Amendment protection in the cell phone numbers on records of text message exchanges. In other words, has FloresLopez raised the issue of “virtual curtilage” associated with a cell phone? Due to the various models of cell phones on the market, it is unrealistic that the government will be able to search only for the number assigned to it without risking a privacy violation. Moreover, since the Fourth Amendment protects people and not property, it is an extremely precarious proposition to permit the government to open one’s cell phone and risk searching content that would violate a defendant’s legal and/or statutory right to privacy concerning the ESI either stored on a cell phone itself or in the “cloud” (i.e., email, contacts, calendars, etc.).14 For example, if an iPhone user subscribes to Apple’s “iCloud,” many data files are stored both in the “cloud” as well as on the iPhone itself. When an iPhone user adds a contact or calendar event via Apple’s website (www.icloud.com), the cloud-based service automatically synchronizes the iPhone and vice-versa with the iCloud website. To log into iCloud online, one must provide a user name and password. Therefore, ESI stored in iCloud is arguably protected by the Stored Communications Act, and therefore, so would the same information on the mobile device itself on which the telephone number resides. Notably, such data would only be accessible by the government with a warrant under applicable federal wiretap statutes.15 Certainly, the subject cell phone in each case will not always be an iPhone. Nevertheless, how can the court safely make the distinction as to what stored content is protected under the Electronic Communications Privacy Act (ECPA) and related wiretap laws, and what information stored on the phone is merely “trivial”? The distinction that needs to be made is that the task may be ministerial, but matching a key to a mailbox does not run the risk of violating the ECPA. The risk of intrusion is too substantial. One cannot analogize all cell phones to a traditional bounded paper diary or a mailbox associated with an apartment. The procedural prerequisites the government must satisfy to access ESI under ECPA are much greater — where judicial process is mandated by statute — than accessing narcotics hidden in between pages of a book, which may be minimally intrusive or permissible pursuant to a W W W. N A C D L . O R G

well-founded legal exception to the Fourth Amendment. In addition to holding that searching for a cell phone number on the device itself is “trivial,” the Seventh Circuit also accepted the prosecution’s argument that mobile phones are simply “container(s)” of information subject to search without reason specific to the container itself. Therefore, relying on the U.S. Supreme Court case of United States v. Robinson, a cell phone may be searched for certain content such as the number assigned to it without justification specific to the mobile phone (“container”) itself.16 The Seventh Circuit analogized a cell phone containing electronically stored information to a defendant’s diary, which could also contain data on the pages of the hard copy book. According to the court, both a cell phone and diary contain information, and therefore both can be opened and searched for identifiable information without a warrant. Flores-Lopez points to various examples of wiping software and other remote manipulation tools to justify the presence of exigent circumstances to search for a telephone number on a cell phone. The discussion in Flores-Lopez as to “exigency” and “triviality” neglects to balance the risk of violating a defendant’s statutory privacy rights. However, the court acknowledges there is an unresolved issue concerning what should be the tolerable breadth of warrantless cell phone searches. Since legally protected ESI is inextricably tied into the cell phone itself, one cannot practically analogize a cell phone to the lock and key in Concepcion or the container in Robinson. A few questions come to mind. What if the recent calls directory on the cell phone contains the user’s telephone number on the screen of the telephone, but a text message from the suspect’s physician or attorney pops up when the search is being conducted? What if the number searched is virtual and used for incoming calls (e.g., Google Voice) requiring an online password for access? What if the phone opened by the governmental official was seconds from entering a self-lock mode? What about GPS data and the fact that the government is required to have a warrant before accessing it? Nearly all cell phones double as GPS devices, so what makes accessing them trivial?17 It may be impractical to require that law enforcement officials carry around mobile forensics hardware. Exigency is fact-based, however, and it should not be assumed that a suspect has arranged for a remote wipe of his cell phone. There is a serious collision between wiretap law

and the Fourth Amendment that remains unresolved. The situation is further complicated by Flores-Lopez. The major distinction between accessing an electronic device versus a physical object such as a plastic container is that the risk of intrusion into statutorily protected data is extraordinarily greater when a device is involved, whereas one can reasonably determine where hard copy evidence physically resides. Preserving cell phone content forensically in order to apply for a warrant to search the phone may not be ideal for the government; however, it is the most rational and constitutionally sound mechanism to protect society’s expectation of cell phone privacy. There are portable digital forensics tools available that are not unduly burdensome for law enforcement to use. Requiring law enforcement officers to use these forensics tools is a smaller price to pay than compromising a suspect’s constitutional right to privacy.18 If a defendant chooses to arrange for a remote wipe of a cell phone upon being arrested, then the forensic image will yield evidence of consciousness of guilt. There are less intrusive and more constitutionally sound mechanisms to ensure justice is served. Flores-Lopez has paved the way for numerous legal arguments concerning cell phone evidence and its related ESI. There are many different kinds of cell phones containing a multitude of features and applications with varying levels of privacy settings. Arguably, cell phones are more like the telephone booth in Katz, except the phone booth now resides inside the telephone.19 Unlike a paper bound diary with contraband stored inside of it, a cell phone is vulnerable to manipulation, spoliation of evidence, and doubling as the government’s gateway to ESI protected by the Fourth Amendment and by state and federal statutes.

Conclusion Understandably, the law is evolving along with the technology. There is going to be a point in time, however, when society will have to determine whether the cell phone, per se, is an extension of the individual, and therefore deserving of the same Fourth Amendment protection as U.S. citizens enjoy in their use of a traditional landline. Until the law honors the inextricable tie between individuals and their cell phones, there will likely never be synergy across jurisdictions relating to the lawful search of a cell phone — whether incident to arrest or otherwise. I - A - 76 THE CHAMPION

Notes

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cell phone users have “a reasonable and justifiable expectation of a higher level of privacy in the information [cell phones] contain” because of their multi-functional uses and ability to store large amounts of private data, including text messages). 13. Commonwealth v. Pitt, No. 2010-0061 (Mass. Superior Court - Norfolk County Feb. 23, 2012); available at http://www.socialaw. com/slip.htm?cid=21253 (last visited May 1, 2012). 14. See 18 U.S.C. §§ 2510-22 (Wiretap Statute); 18 U.S.C. §§ 2701-12 (Electronic Communications Privacy Act); 18 U.S.C. §§ 2701-12 (Stored Communications Act); and 18 U.S.C. §§ 3121-27 (Pen/Trap Statute). 15. See 18 U.S.C. §§ 2510-22 (Wiretap Statute); 18 U.S.C. §§ 2701-12 (Electronic Communications Privacy Act); 18 U.S.C. §§ 2701-12 (Stored Communications Act). 16. United States v. Robinson, 414 U.S. 218 (1973). 17. United States v. Jones, 132 S. Ct. 945 (2012). 18. See http://www.cellebrite.com/ mobile-forensics-products/forensics-products.html (the company’s website under “About Us” states the following: “Cellebrite’s UFED products provide cutting-edge solutions for physical, logical and file system extraction for thousands of mobile phones, smartphones and GPS devices, with groundbreaking physical extraction & decoding

capabilities for the world’s most popular platforms — iPhone and Android. Our dedicated R&D staff is constantly at work to create new, innovative tools and solutions to meet daily challenges and anticipate new ones that await investigators in the lab or in the field.” 19. See Katz v. United States, 389 U.S. 347, 361 (1967). n

U.S. V. FLORES-LOPEZ

1. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012). 2. See 21 U.S.C. §§ 841(a)(1); 18 U.S.C. § 924(c)(1). 3. United States v. Flores-Lopez, 2012 U.S. App. LEXIS 4078, 18-20 (7th Cir. Ind. Feb. 29, 2012). 4. United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991). 5. See 21 U.S.C. § 841. 6. United States v. Concepcion, 942 F.2d at 1172-73 (7th Cir. 1991). 7. Arizona v. Hicks, 480 U.S. 321, 324 (1987). 8. See Center for Disease Control and Prevention, Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December 2009 (available at http://www.cdc.gov/nchs/data/ nhis/earlyrelease/wireless201005.htm). 9. See CTIA, The Wireless Association®, Wireless Quick Facts: Mid-Year Figures (available at http://www.ctia.org/advocacy/ research/index.cfm/aid/10323) (the following text is contained in the footnote to the 31.6 percent figure above on the CTIA website: “Midyear 2006 wireless-only data from Early Release of Estimates from the National Health Interview Survey, July-December 2009. National Center for Health Statistics, May 2010. Figure for June 2011 is from Early Release of Estimates from the National Health Interview Survey, January-June 2011. National Center for Health Statistics, December 2011”). 10. See Katz v. United States, 389 U.S. 347, 361 (1967). 11. City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010). 12. See State v. Clampitt, 2011 Mo. App. LEXIS 1741 (Mo. Ct. App. 2012) citing United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (concluding defendant had a reasonable expectation of privacy in the call record and text messages on his cell phone because he had a possessory interest in the phone and took “normal precautions to maintain his privacy in the phone”); United States v. Davis, 787 F. Supp. 2d 1165, 1170 (D. Or. 2011) (finding “[a] person has a reasonable expectation of privacy in his or her personal cell phone, including call records and text messages”); United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011) (defendant had a reasonable expectation of privacy in his cell phone because “the weight of authority agrees that accessing a cell phone’s call log or text message folder is considered a ‘search’ for Fourth Amendment purposes”); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (“a search warrant is required to search the contents of a cell phone unless an exception to the warrant requirement exists”); State v. Smith, 124 Ohio St. 3d 163, 920 N.E.2d 949, 956 (2009) (finding

About the Author Daniel K. Gelb, an NACDL life member, is a partner in the law firm of Gelb & Gelb LLP. He is the White Collar Crime Committee’s District of Massachusetts Chairperson. Daniel practices in the areas of criminal defense, securities litigation, and regulatory proceedings. Daniel K. Gelb Gelb & Gelb LLP 84 State Street, 4th Floor Boston, MA 02109 617-345-0010 Fax 617-345-0009 E- MAIL [email protected]

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with Skinner, locating the device’s signal at a rest stop. Soon thereafter, law enforcement officials encountered a motorhome filled with over 1,100 pounds of marijuana. After litigating the merits of the seizure at some length, the trial court denied Skinner’s motion to suppress the government’s search of the motorhome, eventually resulting in a conviction for drug trafficking and conspiracy to commit money laundering.3

Cell Site Location Data

United States v. Skinner Using a Cell Phone Is Not A Consent to Search

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n Aug. 14, 2012, the U.S. Court of Appeals for the Sixth Circuit issued the opinion in United States v. Skinner.1 In Skinner, federal Drug Enforcement Administration agents seized data maintained by a cell phone service provider in an effort to derive as closely as possible the real-time geographical information residing on defendant Melvin Skinner’s “pay-as-you-go” mobile phone.2 The “cell tower” data was subsequently used to establish Skinner’s location as he transported drugs interstate on public roadways. DEA agents tracked the cell phone they learned was associated

The court of appeals held, inter alia, that Skinner did not have a reasonable expectation of privacy in the geo-location data produced by the mobile phone that became available to law enforcement officials from the cell phone carrier’s network.4 Skinner is a good example of how legal precedent, although ever-evolving, is not necessarily progressing in lock step with technology and the realities of the ways in which it is being embraced by modern society. In other words, as technology changes, arguably so should the manner in which courts across the United States apply the twofactor “subjective/objective” test expounded by the U.S. Supreme Court in Katz v. United States.5 The Sixth Circuit draws a distinction between Skinner and United States v. Jones.6 In Jones, the U.S. Supreme Court held that the government’s installation of a GPS device on the defendant’s vehicle in order to “track” it constituted a “search” in violation of the Warrant Clause in the Fourth Amendment.7 Jones, a significant coup for the criminal defense bar, recognizes that society has adopted a reasonable expectation of privacy as to travel inside a motor vehicle. The subjectivity prong of Katz is not so clear cut when it comes to cell use location evidence. For example, in Commonwealth v. Pitt, a Massachusetts Superior Court ruled cell location evidence to be the type of information society is ready to adopt as being private under the Fourth Amendment because individuals do not expect their whereabouts to be logged simply because of the phone calls they make.8 Ironically, it appears the Sixth Circuit perceived the defendant’s use of a prepaid or “pay-as-you-go” cell phone as evidence of defendant’s subjective intent not to be followed. While Jones involved intensive monitoring over a 28-day period, in Skinner the court found that the DEA agents only tracked Skinner’s cell phone for three days.

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The court justified the result in Skinner by raising, among other issues, the question of whether monitoring a vehicle carrying contraband across interstate highways is not overly invasive if less expensive and more efficient means to do so are available to law enforcement.9 Arguably, if one adopts Skinner then Jones would provide — which it does not — that individuals could be tracked by GPS without a warrant so long as they have GPS in the car being tracked.

Pinging Technology

Expectations of Privacy The concept of a right to privacy in one’s “curtilage” is different than it was W W W. N A C D L . O R G

content on their cell phones, but also their locations. Specifically, a recent survey found 31.6 percent of American households are “wireless only” (i.e., no traditional landline telephone service inside the home).24 The physical location of a mobile telephone is in many ways an extension of an individual’s own person. Consider United States v. Karo, holding that once an individual targeted by the government enters the threshold of the doorway into the home, the surveillance of the location of the handheld without a warrant arguably becomes unconstitutional.25 Katz reinforced the principle that the Fourth Amendment to the U.S. Constitution “protects people, not places.”26 Therefore, the analysis of mobile data should begin with the associated case-specific conduct being analyzed in order to determine the actual or subjective expectation of privacy the person challenging the seizure exhibited. The analysis then turns to the circumstances under which society as a whole views the expectation of privacy as reasonable and objectively acceptable.27 Cell phones, whether under contract or prepaid, are not purchased with the expectation that the government will have unfettered access in order to mine through the geo-location data created through use of the phone. Therefore, Skinner is arguably inconsistent with the Supreme Court precedent established in Kyllo v. United States.28 The government may not conduct unreasonable searches, even with technology that does not physically enter the home such as thermal imaging of a defendant’s residence, which was found to constitute a search subject to Fourth Amendment scrutiny.29 The Court reasoned that the device used by law enforcement was not readily available to the public, and therefore, the search was unreasonable under the Fourth Amendment and therefore unconstitutional.30 In Kyllo, the Court’s “firm but also bright” line drawn by the Fourth Amendment at the “entrance to the house” is arguably not sufficient in the context of mining prospective cell phone geo-location.31 Skinner risks blurring the distinction between permissible seizures pursuant to the Communications Assistance for Law Enforcement Act32 and data to which law enforcement should not be permitted access such as real-time or prospective geo-location data.33 Mining for real-time or prospective geographical coordinates of usage is not a method of observation available to members of the public — unlike a camera used for aerial mapping.34 Skinner appears to stretch Knotts too far. Civilians can place a tracking device I - A - 79

U N I T E D S TAT E S V. S K I N N E R

In most cases, cell site location data used to establish a defendant as the “perpetrator” of a crime begins with “pinging.”10 A “ping” typically refers to a cell phone connecting with the closest cell phone tower because someone placed a call though that cell phone. The phone then makes contact with the closest cell site (i.e., “tower”), and the call is then transmitted to the receiving tower.11 Trial courts, including those in the Sixth Circuit, are certainly familiar with the concept that if “a cell phone is ‘on’ (regardless of whether the phone is then making or receiving a phone call or text message), the phone automatically and periodically transmits a signal to ‘register’ with the cellular network.”12 Skinner recognizes that pinging technology is routinely used by law enforcement to investigate and track suspects without the use of a search warrant.13 Criminal defenders across the country are likely routinely encountering this tactic, which invites the question presented by Katz v. United States in 1967: How far does the Fourth Amendment’s protection reach?14 Unfortunately, the answer is “not too far” if one adopts Skinner wholesale without taking several factors into consideration. Mobile communications are inextricably tied to daily personal and business activities. Traditional notions of what society may consider as an expansion of private conduct are being redefined. Cell phones and “home” phones are becoming unified by virtue of technological advancements. 15 Notably, Katz established that the Fourth Amendment protects people and not places, which is another reason to progressively apply its holding to the mining of mobile data collected by law enforcement.

over 25 years ago.16 Like technology, both subjective and objective notions of privacy are evolving. Cell phone data should not be deprived of Fourth Amendment protection due to its mobile characteristics. Skinner does not appear to appreciate the notion that society’s mainstream sense of “privacy” is no longer based on defined locations or “places,” and therefore, curtilage has become, in many ways, “virtual” with respect to electronically stored information. Therefore, factors concerning whether such data may be seized without a search warrant must continue to evolve.17 Skinner relies upon the suspect tracking case of United States v. Knotts in which the U.S. Supreme Court found no inherent constitutional difference between trailing a defendant and tracking him by means of a “beeper.”18 The finding in Knotts is substantially attributed to the Court’s holding in Smith v. Maryland, the case establishing that a subscriber telephone service has no reasonable expectation of privacy in the numbers he or she dials through a carrier’s switching equipment.19 However, cell phones are not landlines, which is why other courts have since held that “[a] cell phone subscriber does not use the phone to track his own movements in real time, [and therefore,] prospective cell site data appears to be unrelated to any customer (as opposed to law enforcement) use of the provider’s services.”20 Individuals have a reasonable expectation of privacy in their mobile devices. This privacy expectation is evidenced by the security features they choose to enable or disable.21 This concept was applied to wireless Internet access in United States v. Ahrndt. In Ahrndt, federal agents accessed the defendant’s home WiFi network through a wireless router used to file share child pornography through the iTunes software application.22 The government was able to associate the IP address of the router with the defendant. Since the wireless router was not password protected, the data transmitted across the network was not “private,” and therefore, the defendant’s motion to suppress was denied. A reasonable argument can be made that the law may differentiate between end-users who display a subjective expectation of privacy in their technology by how it is used, and endusers who opt into being “tracked” by cell phone service providers and/or other third-party services.23 Given the extent of the permission cell phone location service providers seek from their end-users, it is clear that members of society have an expectation of privacy in not only the

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in a vehicle provided there is lawful access, but cannot access cell phone geolocation data like law enforcement — absent extraordinary circumstances recognized by court order.35 In addition, the average person requires a licensed software application to track a mobile phone as opposed to Web-based “pinging” access provided to police by the cell phone networks. Therefore, the location where the numbers were dialed from or the location from where calls were received should be deemed private as is any other content relating to a mobile phone that is generally protected.36

U N I T E D S TAT E S V. S K I N N E R

Revising the Fourth Amendment’s Scope

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Societal use of mobile technology may appear to be less “private” due to the nature and frequency of its use outside of the “physical home” and beyond one’s tangible “curtilage.”37 Therefore, cell phone location data is a byproduct produced by the technology itself, and using it should not be considered providing de facto consent to a search. The Supreme Court in a separate concurring opinion in United States v. Jones noted that GPS tracking without physical intrusion may trigger Fourth Amendment scrutiny.38 The Court did not reach the question in Jones, but when opinions like Skinner appear to be in conflict with those like Kyllo, the opportunity for the Court to expand the scope of the Fourth Amendment protection in the context of cell towers, and maybe even the Cloud, might be just around the corner.39

Notes

1. United States v. Skinner, 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012). 2. Id. 3. Id. at *3 (“Skinner was charged with conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and aiding and abetting the attempt to distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2.”). 4. Id. 5. See Katz v. United States, 389 U.S. 347 (1967) (the two-factor analysis is (1) whether a defendant has displayed conduct consistent with a subjective expectation of privacy; and (2) whether such subjective expectation is one that society, objectively, is willing to find reasonable to the point it would be adopted). 6. United States v. Jones, 132 S. Ct. 945, 181 W W W. N A C D L . O R G

L. Ed. 2d 911 (2012). 7. Id. at 949. 8. See Commonwealth v. Pitt, 29 Mass. L. Rep. 445, *12-13 (Mass. Super. Ct. 2012): The reasoning in Justice Alito’s concurrence is particularly applicable here. Just as society’s expectation has long been that law enforcement would not — could not — precisely track the movements of a subject of a police investigation over a protracted period, so too has society long expected that it would be impossible to reach into the archives of a person’s telephone service records and determine his location at prior points in time, even when he was not the target of an investigation. 9. United States v. Skinner, 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012). 10. Obama Administration Urges Freer Access to Cellphone Records ( Thomson Reuters) (May 3, 2012) available at h t t p : / / w w w. re u te r s. co m / a r t i c l e / 2012/05/03/usa-security-surveillanceidUSL1E8G3OL320120503 (last visited September 3, 2012). 11. See In re United States Orders Pursuant to 18 U.S.C. 2703(d), 509 F. Supp. 2d 76, 81 (D. Mass. 2007); In re Application of United States for an Order for Disclosure of Telecomm. Records, 405 F. Supp. 2d 435, 449 (S.D.N.Y. 2005). 12. See In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site Location Info., 6:08-6030M-REW, 2009 WL 8231744 (E.D. Ky. Apr. 17, 2009). 13. United States v. Skinner, 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012) citing United States v. Jones, 132 S. Ct. at 964 (2012) (Alito, J., concurring) (citing United States v. Knotts, 460 U.S. 276, 281-82 (1983)). 14. See In re United States Orders Pursuant to 18 U.S.C. 2703(d), 509 F. Supp. 2d at 81 (D. Mass. 2007). 15. See CITA, The Wireless Association®, Wireless Quick Facts: Mid-Year Figures (available at http://www.ctia.org/advocacy/ research/index.cfm/aid/10323). 16. United States v. Dunn, 480 U.S. 294, 300-301 (U.S. 1987) (“curtilage” is the immediate, enclosed area surrounding a house or dwelling). 17. See the comments and content on the pending Geolocational Privacy and Surveillance Act (http://thomas.loc.gov/cgibin/bdquery/z?d112:h.r.2168). 18. United States v. Knotts, 460 U.S. 276 (1983). 19. Smith v. Maryland, 442 U.S. 735, 744745, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). 20. See In re Pen Register & Trap/Trace Device With Cell Site Location Auth., 396 F. Supp. 2d 747, 759 (S.D. Tex. 2005).

21. See Commonwealth v. Pitt, 29 Mass. L. Rep. 445, *12-13 (Mass. Super. Ct. 2012). 22. United States v. Ahrndt, 2010 WL 373994, slip op. (D. Or. January 28, 2010). 23. See In re Pen Register & Trap/Trace Device With Cell Site Location Auth., 396 F. Supp. 2d 747, 759 (S.D. Tex. 2005); Commonwealth v. Pitt, 29 Mass. L. Rep. 445, *12-13 (Mass. Super. Ct. 2012). 24. Id. 25. See United States v. Karo, 468 U.S. 705, 715, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (warrantless use of a beeper to monitor can of ether was an unlawful search; however, the Court upheld the conviction by finding affidavit in support of the search warrant had enough information not derived from the unlawful use of the beeper for sufficient basis to find probable cause, thereby distinguishing the unlawful monitoring of beeper signals to disclose information about a private residence from information that could otherwise be obtained from public observation). 26. Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). 27. Id. 28. Kyllo v. United States, 533 U.S. 27, 40 (2001). 29. Id. 30. Id. 31. Id. 32. See 47 U.S.C. §§ 229, 1001 et seq. 33. See Brief for Electronic Frontier Foundation and Center for Democracy & Technology as Amici Curiae Supporting Defendant Antoine Jones’ Motion to Suppress Cell Site Data, United States v. Antoine Jones, 1:05-cr-00386-ESH (Document 644) (August 13, 2012) (D.D.C.). 34. See Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (finding a “knowing exposure” exception to the warrant requirement where federal agents utilized an aerial mapping camera to enhance that which the human eye could not observe from a lawful vantage point without trespassing). 35. See Electronic Frontier Foundation, CALEA FAQ, available at https://www.eff. org/pages/calea-faq#1 (“The U.S. Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994 to aid law enforcement in its effort to conduct surveillance of digital telephone networks. CALEA forced telephone companies to redesign their network architectures to make such surveillance easier. It expressly excluded the regulation of data traveling over the Internet.”). 36. See 18 U.S.C. §§ 2510-22 (Wiretap Statute); 18 U.S.C. §§ 2701-12 (Electronic Communications Privacy Act); 18 U.S.C. §§ 2701-12 (Stored Communications Act); and 18 U.S.C. §§ 3121-27 (Pen/Trap Statute). Continued on pageI 46 - A - 80

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SENTENCING

Continued from page 44 tence of 119 months for child pornography offenses), with United States Sentencing Comm’n, Preliminary Quarterly Data Report: 2nd Quarter Release tbl. 19 (Jul. 2012) (reporting an average sentence of 134 months for child pornography offenses). 10. Child Protection Act of 2012, H. Rep. 112-638, at 28. 11. Melissa Hamilton, The Child Pornography Crusade and Its Net-Widening Effect, 33 CARDOZO L. REV. 1679, 1729 (2012) (footnotes omitted). 12. Id. 13. See, e.g., Carissa Byrne Hessick, Disentangling Child Pornography From Child Sex Abuse, 88 WASH. U. L. REV. 853, 875 (2010) (reviewing literature and studies and dismissing as lacking empirical foundation “the assumption that those who view child pornography want to engage in sexual conduct with children and that possessing the images makes it more likely that they will engage in contact offenses”). 14. Id. at 876-77. 15. Transcript on file with Zachary Margulis-Ohnuma. !

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46

W W W. N A C D L . O R G

UNITED STATES V. SKINNER Continued from page 32

37. See United States v. Dunn, 480 U.S. 294, 300-301 (1987). 38. United States v. Jones, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring). 39. See Kyllo v. United States, 533 U.S. 27, 40 (2001). !

About the Author Daniel K. Gelb, an NACDL life member, is a partner in the law firm of Gelb & Gelb LLP. He is the White Collar Crime Committee’s District of Massachusetts Chairperson. Gelb practices in the areas of general and white collar criminal defense, civil litigation, and regulatory proceedings. Daniel K. Gelb Gelb & Gelb LLP 84 State Street, 4th Floor Boston, MA 02109 617-345-0010 Fax 617-345-0009 E- MAIL [email protected]

I - A - 81 THE CHAMPION

THE CONSTITUTION IN THE CLOUD THE FOURTH AMENDMENT AND ELECTRONICALLY STORED DATA

Daniel K. Gelb, Esq. GELB & GELB LLP 84 State Street Boston, MA 02109 Telephone: 617-345-0010 Email: [email protected]

I-B-1

CLOUD COMPUTING DESKTOP

TABLETS/LAPTOPS/ULTRABOOKS

(files on the hardware itself;  shared networks (“LAN”)

“THE CLOUD” GAMING CONSOLES / SMART TV’s

CELL PHONES SMART PHONES  FEATURE PHONES

(e.g., passwords,  contacts, photos,  videos, browsing  history, e‐docs,  personal data, SMS  logs, etc.)

I-B-2

Cell Internet Use In 2013 (Pew Research Center) (September 16, 2013)* 

Six in ten cell phone owners (63%) now go online using their mobile phones



eight‐point increase from the 55% of cell owners who did so at a similar point in 2012 and a two‐fold increase over the  31% who did so in 2009. 



Pew study calls the group “cell internet users,” and they include anyone who:  

Uses the internet on their cell phone (60% of cell owners do this), or 



Uses email on their cell phone (52% of cell owners do this) 



Taken together, 63% of cell owners do one or both of these things, and are classified as cell internet users.



91% of Americans are cell phone owners, therefore, 57% of all Americans now go online using a mobile phone



Steady increase in cell phone internet usage follows a similar growth trajectory for smartphone ownership. 



Over half of all adults (56%) now own a smartphone, and 93% of these smartphone owners use their phone to go online. 

*See http://www.pewinternet.org/files/old‐media//Files/Reports/2013/PIP_CellInternetUse2013.pdf

I-B-3

THEMES TO THINK ABOUT • What is “Electronically Stored Information” (a/k/a “ESI”), and how may it be used? • Which statutory frameworks are most routinely implicated by ESI and the Cloud? • Which constitutional provisions practitioners may consider when the government relies upon ESI? • How is the extinction of the traditional “telephone booth” impacting the evolution of Fourth Amendment jurisprudence?

I-B-4

FOURTH AMENDMENT: The U.S. Supreme Court has held that the Fourth  Amendment protection against unreasonable  search and seizure extends to the interception  of communications and applies to all  conversations where an individual has a  reasonable expectation of privacy.  See Berger v. New York, 388 U.S. 41 (1967) and  Katz v. United States, 389 U.S. 347 (1967).

I-B-5

Berger v. New York 388 U.S. 41 (1967)  • New York law had authorized electronic  eavesdropping without required procedural  safeguards. • Held unconstitutional by the United States  Supreme Court under the 4th Amendment.

I-B-6

Katz v. United States 389 U.S. 347 (1967)  • The two‐factor analysis:  1. Has the defendant displayed conduct consistent  with a subjective expectation of privacy?  and 2. Is the subjective conduct displayed one that  society is willing to find objectively reasonable  to the point it should be adopted as a matter of  law? 

I-B-7

SEIZURE AND USE OF ESI: CONSTITUTIONAL ANALYSIS TO CONSIDER (Interplay Between Fourth, Fifth & Sixth Amendments) FOURTH AMENDMENT (WARRANT CLAUSE  ‐ RIGHT TO PRIVACY) • Katz v. U.S. 89 U.S. 347 (1967) (two‐factor analysis is (1) whether a defendant has  displayed conduct consistent with a subjective expectation of privacy; and (2)  whether such subjective expectation is one that society, objectively, is willing to  find reasonable to the extent it should be adopted).  • Smith v. Maryland, 442 U.S. 735 (1979) (to challenge an unjustifiable search and  seizure defendant must satisfy “standing” requirement = legitimate expectation of  privacy in the place searched or the item seized) • Maryland v. Garrison, 480 U.S. 79, 84 (1987) (Warrant Clause requires seizure of  property (or person) pursuant to a lawfully issued search warrant, or a well‐ founded legal exception to the Exclusionary Rule) FIFTH AMENDMENT (RIGHT AGAINST SELF‐INCRIMINATION) • Fisher v. United States, 425 U.S. 391 (1976) • Act of Production Doctrine

I-B-8

ADDITIONAL CONSTITUTIONAL  ANALYSIS TO CONSIDER (cont.)  SIXTH AMENDMENT (RIGHT TO COUNSEL / CONFRONTATION CLAUSE)  Confrontation Clause / Hearsay  Crawford v. Washington , 541 U.S. 36 (2004)   Mandates opportunity for cross‐examination of testimonial statements of witnesses who  subsequently become unavailable.  Melendez‐Diaz v. Massachusetts, 557 U.S. 305 (2009)  Right to confront testimonial drug analysis.  Right to Counsel  Messiah v. U.S. 377 U.S. 201 (1964)   Government may not elicit statements from defendant after the right to counsel  attaches.  FOURTEENTH AMENDMENT (STATE‐LEVEL APPLICATION)  Equal Protection Clause  Due Process Clause

I-B-9

WHAT IS “ELECTRONICALLY STORED  INFORMATION” AND HOW MAY IT BE USED  AGAINST YOUR CLIENT?

I - B - 10

MOBILE PHONES • Smartphones are now preconfigured to interface  with cloud‐based software (e.g., pre‐installed and  apps available for purchase, etc.) • Social media and other forms of Web 2.0 services  (e.g., Facebook, WhatsApp, Twitter, LinkedIn,  Instagram, YouTube, etc.) are an integral method  for various ways in which society communicates.  • majority of handheld devices are preconfigured  with social media and other related soft‐ ware  applications such as Facebook, Twitter, LinkedIn,  MySpace, and Google+. 

I - B - 11

ESI:  Hardware vs. Software HARDWARE • Physical components • Store active files (e.g., e‐ docs, media files, emails,  system files, etc.) • Writable/Volatile • Subject to acquisition and  analysis

SOFTWARE • Operational data about  applications running on  hardware • Proof of oral communications  occurring both to and from the  defendant’s cell phone (e.g.,  call logs, etc.). • Access to the Internet • GPS / cell‐site location data • Email

I - B - 12

WHAT ELECTRONICALLY STORED INFORMATION (“ESI”) MAY BE INVOLVED? “Typical E-Discovery” = Productivity files and other e-docs and files created by the user; email, etc. Social Media/Cloud = Web-based applications that build on the Web 2.0 platform of interactive, which allows the creation and contribution to website content and information. Media Files = audio, video and other electronic content that delivered by information systems (e.g., .mp3 files for audio/music, .mpg files for video, .exe for Windows “ executable files, ” .wav files for voicemail (may be .mp3 in the alternative, etc.). Mobile Data = cell/smartphone/tablet data; cell site location/GPS/Visitor Location Registers; SMS and MMS messaging (e.g., cell phone/mobile data (call logs, SMS, contacts, geographical data, etc.) System Files = electronic files which the computer hardware and other software will not work properly without (e.g., those critical to the computer’s operating system) Unallocated space: space created on a hard drive when a file is marked for deletion. This space is no longer “allocated” to a specific file. Until it is overwritten, it still contains the previous data and can often be retrieved.

I - B - 13

Forensic Integrity Should Be Measured From The Moment The  Hardware Is Seized And No Just When The Data Is Analyzed

• “Faraday Bag” (or “RF (radio frequency) Shield”) – named after the British physicist Michael Faraday who  created the first one in 1830s.  – enclosure made of particular conducting materials – blocks external static electrical fields (including radio  waves) so law enforcement officials need not power  down hardware seized.  – External radio field causes current within the  conducting material of the enclosure to redistribute  themselves in order to cancel out the static that could  alter the hardware (i.e., smartphone, tablet, laptop,  etc.) inside the bag.

I - B - 14

POPULAR MOBILE  IMAGING TECHNOLOGY • Universal Forensic Extraction Device (Cellebrite) • XRY (Micro Systemation) • MobileEdit Forensic (Compelson Laboratories) • Aceso (Radio Tactics) • Device Seizure (Paraben)

I - B - 15

Mobile Communications: The Telephone Booth Turned Inside‐Out • Some mobile apps run locally on the handheld  device itself; however, most of them are  gateways to what is known as “software‐as‐a‐ service,” or “SaaS” for short.  • Software application running remotely from  the handheld device itself, which is commonly  referred to as running in the “cloud.”  • Society is wired differently in today’s  environment of mobile technology.

I - B - 16

SOME ASPECTS OF  MOBILE  FORENSICS • Physical Extraction   – bit‐by‐bit copy of the entire flash memory on handheld  – data remains inviolate along with hard to find information  which may either be hidden or deleted.

• File system extraction  – forensically acquiring files in the memory of the handheld  device, allowing for file access residing in phone’s memory (e.g., video, audio, directories, logs, etc.).  – Access user data (e.g., email, passwords, contact  information, activity history, etc.)

I - B - 17

MOBILE FORENSICS (cont.) • Logical extraction  – Using the device operating system using known set of  commands – difficult for locked/encrypted devices – Passwords, call logs, SIM data, phone credentials such  as IMEI / ESN, phonebook information, texts, images,  videos, audio, etc.

• Decoding – Reassembles binary data into readable forms – Process provides access to hidden information (e.g.,  geographical location, roaming, etc.) 

I - B - 18

STATUTORY FRAMEWORKS TYPICALLY  IMPLICATED BY ESI AND THE CLOUD

I - B - 19

STATUTORY IMPLICATIONS AND THE FOURTH AMENDMENT

I - B - 20

Omnibus Crime Control and Safe Streets Act of 1968  (Pub.L. 90–351, 82 Stat. 197, enacted June 19, 1968)

• Codified at 42 U.S.C. § 3711 following  assassination of President John F. Kennedy,  and increased public concern about lack of  control over the sale and possession of  firearms in the United States. • Title III = protocol for wiretap orders

I - B - 21

TITLE I LEAA • Established Law Enforcement Assistance  Administration (LEAA). • Federal funding for criminal justice research • Alternative rehabilitative action for juveniles  • Law enforcement assistance for rioting and  organized crime, etc.

I - B - 22

TITLE II:   STORED COMMUNICATIONS  • The SCA was included as Title II of the  Electronic Communications Privacy Act of  1986 (“ECPA”)  • ECPA itself also included amendments to the  Wiretap Act and created the Pen Register and  Trap and Trace Devices statute addressed in  Chapter 4. See Pub. L. No. 99‐508, 100 Stat.  1848 (1986).

I - B - 23

TITLE II:  STORED COMMUNICATIONS • City of Ontario, Cal. v. Quon, 130 S. Ct. 2619  (2010) (holding that public employer may  access text messages in hard‐ ware it issues to  employees without violating reasonable  expectations of privacy). 

I - B - 24

TITLE III • Title III of the Omnibus Crime Control and Safe Streets Act of 1968,  (Pub. L. 90‐351; 6/19/68), also known as the "Wiretap Act”:  prohibits the unauthorized, nonconsensual interception of "wire, oral,  or electronic communications" by government agencies as well as  private parties;  establishes procedures for obtaining warrants to authorize  wiretapping by government officials; and  regulates the disclosure and use of authorized intercepted  communications by investigative and law enforcement officers. See https://it.ojp.gov/default.aspx?page=1284

I - B - 25

TITLE III • Originally covered only "wire" and "oral"  communications  • Revised by Title I of the ECPA in 1986 to  include electronic communications.  • ECPA includes two additional titles regulating: – Stored Communications Act – “Pen Register" and “Trap and Trace”

I - B - 26

TITLE III  Requires federal, state and, other government  officials to obtain judicial authorization for  intercepting "wire, oral, and electronic"  communications such as telephone  conversations and e‐mails.   regulates the use and disclosure of  information obtained through authorized  wiretapping  See 18 U.S.C. §§ 2516‐18.

I - B - 27

HOW IS THE EXTINCTION OF THE TRADITIONAL  “TELEPHONE BOOTH” IMPACTING THE  EVOLUTION OF FOURTH AMENDMENT  JURISPRUDENCE?

I - B - 28

“UNIFICATION” OF ESI • Email, voice, text, and social media services have  become inextricably tied in many ways.   • Can reside on a single handheld device or server or in  the Cloud—or all three.  • Voicemail services provide audio by email  attachment. Arguably more reasonably subject to  seizure. (See United States v. D’Andrea, 497 F. Supp.  2d 117, 120 (D. Mass. 2007)  • ESI now requires a higher level of scrutiny by counsel  when evaluating suppression.  I - B - 29

ONE EXAMPLE: GOOGLE • •

• •

•

Software applications and related  services Users can pick and choose  applications to run with their  Google ID. A la carte use / total access of apps Cross‐integration of features  between services across the Cloud  (e.g., Google Voice‐Gmail; Google  Docs‐Google Drive; Google Play‐ YouTube; Google+ ‐ various apps;  bookmarking websites, etc.) Depending on the settings and  manner in which applications are  used may determine whether  statutory and/or constitutional  protection(s) have been waived  (e.g., blasting data across social  media platform; publishing from  Google docs, etc.)

I - B - 30

FOURTH AMENDMENT Location =  Skinner Phone Number = Flores‐Lopez U.S. v. Skinner 690 F.3d 772(6th Cir. 2012) cert. denied, 133 S. Ct. 2851,  186 L. Ed. 2d 913 (U.S. 2013) 

“Pinging” Skinner's pay‐as‐you‐go cell phone, government determined  its real‐time location to establish he transported drugs along public  ways between Arizona and Tennessee. 



DEA agents located Skinner and his son at a rest stop near Abilene,  Texas, with a motorhome filled with over 1,100 pounds of marijuana. 



Court relied, upon other cases, United States v. Knotts, 460 U.S. 276 (1983) (additional citations omitted): …in Knotts, “the DEA agents could have obtained the same information by following [the defendant's] car. Although the DEA agents were not able to maintain visual contact with [the defendant's] car at all times, visual observation was possible by any member of the public. The DEA agents simply used the cell‐site data to ‘augment[ ] the sensory faculties bestowed upon them at birth,’ which is permissible under Knotts. …There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay‐as‐you‐go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.



Court distinguishes circumstances in Skinner from United States v.  Jones, 132 S. Ct. 945 (2012): …That case involved the secret placement of a tracking device on the  defendant's car, id. at 948, and the Court's opinion explicitly relied on  the trespassory nature of the police action…

U.S. v. Flores‐Lopez 670 F.3d 803, 807 (7th Cir. 2012) 

In United States v. Concepcion, 942 F.2d 1170, 1172–73 (7th Cir.1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private property for the purpose of obtaining information.” But we went on to hold in Concepcion that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954.

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COMPARE: Commonwealth v. Pitt, 2012 WL 927095,  29 Mass. L. Rep. 445, *12‐13 (Mass. Super. Ct. 2012) (not reported)  No subjective expectation of privacy in phone numbers conveyed to the telephone company, or deposit records conveyed to the bank, contrast United States v. Miller, 425 U.S. 435, 443 (1976), because the transfer of that information to the custody of a third party involves affirmative, voluntary steps that a person knows will cause a phone company, or a bank, to learn of it. Where the average cell phone user is not even aware that use of his cell phone creates a record of his location, much less that such use causes this information to be conveyed to the cell phone company, use of a cell phone is in no way inconsistent with a subjective expectation of privacy in the user's physical location. See United States v. Forest, 355 F.3d 942, 951–52 (6th Cir.2004), vacated on other grounds sub. nom. Garner v. United States, 543 U.S. 1100 (2005); see also Jones, 2012 WL 171117, at *10 (Sotomayor, J., concurring) (“[T]he premise that an individual has no expectation of privacy in information voluntarily disclosed to third parties ... is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”)

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No e‐Boundary = No Privacy • No legitimate expectation of privacy in the  contents of a “shared drive” on laptop while  connected to a network. United States v. King,  509 F.3d 1338 (11th Cir. 2007)  • No reasonable expectation of privacy where  defendant networked his computer for the  express purpose of sharing files. United States  v. Barrows, 481 F.3d 1246 (10th Cir. 2007)

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Some Statistics • 73% of online adults now use a social  networking site of some kind • Maeve Duggan and Aaron Smith, Pew  Research Center, January 2014, “Social Media  Update 2013” Available at:  http://pewinternet.org/Reports/2013/Social‐ Media‐Update.aspx (citation referred to  herein as “Pew Social Media 2013”)

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Social Media Breakdown Among Individuals Questioned (Pew Social Media 2013)

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CELL PHONE ACTIVITIES 2013 Maeve Duggan , Pew Internet Research http://pewinternet.org/Reports/2013/Cell-Activities.aspx [September 16, 2013]

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WHAT IS PRIVATE? • Will the United States Supreme Court decide what data is truly  private? – Klayman v. Obama, Civil Action No. 13‐0851 (RJL) (D.D.C.  Dec. 16, 2013). – ACLU v. Clapper, 13 Civ. 3994 (WHP) (S.D.N.Y. Dec. 27,  2013). – Presidential Policy Directive/PPD‐28, (Dec. 17, 2014)  (Guidance relating to conducting electronic data/signaling  surveillance and analysis in connection with authorized  foreign intelligence and counter‐intelligence purposes.)

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Klayman v. Obama C.A. No. 1:13-cv-00881-RJL (D.D.C. Dec. 16, 2013).

 Larry Klayman, Esquire is the founder, chairman and general counsel of  Freedom Watch  U.S. District Court for the District of Columbia granted Klayman’s application  for injunction.   

Court enjoined the National Security Agency (“NSA”) from collecting  telephone and other metadata, finding the NSA program violates the United  States Constitution: "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high‐tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.”

See Klayman v. Obama, 1:13‐cv‐00881‐RJL (Document No. 40)

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ACLU v. Clapper 13-cv-3994-WHP (S.D.N.Y. Dec. 27, 2013)

• Constitutional challenge of the National Security Agency’s (“NSA”) mass‐collection of phone records. • Complaint alleges the government’s actions improperly rely upon Section 215 of the Patriot Act violating privacy rights protected by the Fourth Amendment as well as rights protected under the First Amendment to free speech and association. • The lawsuit also claims the NSA’s program exceeds the authority provided to it by U.S. Congress under the Patriot Act.

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CHAPTER II

Capturing Evidence and Identifying Witnesses From Digital and Social Media By Mr. Marty Bugbee

Digital Evidence

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Social Media Global Statistics

http://www.youtube.com/watch?v=QUCfFcchw1w

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

Marty G Bugbee President Michigan State Police U.S. Air Force OSI Troy, Michigan

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[email protected]

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Ofc: 248-792-7574

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 

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DIGITAL EVIDENCE What is the Value of Digital Evidence?: -Sequencing (what happened when) -Linkage (who interacted with whom) -Evaluation of Source (origin of an item) -Attribution (who was responsible) Types of Digital Evidence for eDiscovery: -Investigative interview -Consider cost

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Where it is found:

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What kinds of media is it stored on?

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Where can one find these files? – Devices – ISPs – Open Sources

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Future Added definition of mobile Phablet

Google Glass

I’m Watch / iWatch

Auto driver user interface

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How long is it stored/available?

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Devices Repositories – Social Media – Telephone Companies – CPU’s – Servers

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There are 6.8 billion people on the planet

4 billion of them use a MOBILE PHONE only 3.5 billion of them use a toothbrush! 16 Source:60secondmarketer.com II - 16

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In total 2021 specific devices are supported on CellXtract.

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What Can Be Captured 

Handset Time and Date, Serial Numbers (IMEI, IMSI), Dialed Calls, Received Calls, Phonebook (both handset and SIM), SMS (both handset and SIM), MMS messages (not available from all handsets), Deleted SMS from SIM, Calendar, Memos, To Do Lists, Pictures, Video, and Audio II - 19

Extraction Results

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GeoTagged Photo

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SMART PHONES iPhone, Android, Blackberry

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Connected to Computer Data Sync, upgrades, etc

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BACKUP CREATED

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– Hidden and sequential – Can not be turned off on iPhones – All texts, MMS, photos, videos, etc.

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Data Retention

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Figuring Out the IP Address

Requires going to a MS-DOS window in your operating system and “ping”

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This is the ‘hit’ return on the IP:

The ‘hit’ resolves to ATT in FL Time to serve ATT with subpoena or search warrant for subscriber info

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Example of Free Search Tools:

www.whatismyipaddress.com

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Another Free IP ‘Lookup’ Website

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GeekTools search ‘hit’ result:

This one comes back to London Metro Univ

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Other Resources

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How to Recover/Discover it.  

Personal User Third Party Request – Subpoena/Court Order – Out of State Server – Review requirement (ex: Facebook requires California subpoena)

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ISP Search POC List

http://search.org/programs/hightech/isp/

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IDENTIFYING WITNESSES The Average Teenager Sends 3,339 Texts Per Month

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TIES® (Trusted Information Exchange Service) Its specialty is tying together disparate information sources and applications, and fusing them into an integrated, online whole.

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DASHBOARD

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Geographic Targeting

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DETROIT WINTER BLAST

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QUESTIONS 

MARTY G BUGBEE

www.ia-investigations.com Ofc: Cell: Email:

248-792-7574 586-770-7124 [email protected]

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CHAPTER III

Finding, Funding & Using Experts

By Bonnie H. Hoffman, Esq.

FINDING, FUNDING AND USING EXPERTS (In Virginia) I.

THE BASICS: a. Do I need an expert? i. Just because there’s “science” in the case doesn’t mean you need an expert. 1. Consider your theory of defense 2. Consider your facts beyond dispute 3. Consider the role “science” plays in your case ii. Just because there is not “science” in your case doesn’t mean you don’t need an expert. 1. Non-forensic sciences a. Physics b. Engineering c. Mental Health d. Medicine 2. Non-science experts a. Culture b. Linguistics c. Memory/perception d. Accounting e. Education/Intelligence b. What kind of expert do I need? i. The right to expert assistance is not limited to one who testifies at trial. 1. The accused has a constitutional right to the effective assistance of counsel. 2. The accused has a constitutional right to present a defense.

3. The accused has constitutional right to confront and cross examine his accusers.

4. The accused’s rights are not limited to issues relating to guilt and innocence, but to sentencing and mitigation.

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ii. What kinds of expert assistance should I consider?

1. Experts to educate you

2. Experts to educate the trier of fact

3. Experts for sentencing/mitigation

c. What should I do before seeking an expert? i. Obtain as much information as possible: 1. Discovery 2. Search Warrants 3. Privacy Releases 4. Subpoena Duces Tecums (Appendix A) DFS: Virginia Code section 19.2-187.2 permits the issuance of a SDT to DFS Seek underlying data Lab/bench notes Communications RFLEs

ii. You need to know what the prosecution says happened 1. Information regarding timing a. Of events b. Of discovery of the crime c. Of identification of your client as the suspect d. Of the development of the criminal charge and criminal case (from offense to trial) 2. Information regarding how the crime is alleged to have occurred

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3. What evidence are they using to say your client is the person responsible a. What evidence was collected b. What evidence was not collected c. How was the evidence collected d. Who collected the evidence e. What was done with the evidence collected 4. Learn about your client a. His history b. His family c. His behaviors i. In general ii. In connection with the alleged offense

II.

FUNDING FOR INDIGENT DEFENDANT EXPERTS a. Right to an Expert: i. Due Process and Equal Protection Rights to the provision of expert assistance at the Commonwealth’s expense 1. The Power of Ake: a. “When a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985)

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b. “We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain he has access to the raw materials integral to the building of an effective defense.” Id. at 77 c. “[f]undamental fairness entitles indigent defendants to ‘an adequate opportunity to present their claims fairly within the adversary system. To implement this principle, we have focused on identifying the ‘basic tools of an adequate defense . . . and we have required that such tools be provided to those defendants who cannot afford to pay for them.” Id. (quoting Britt v North Carolina, 404 U.S. 226 (1971))

2. The Pain of Husske: In Husske v. Commonwealth, 252 Va. 203 (1996), Virginia appellate courts focused on the restrictions the Ake Court mentioned rather than the promise and principles upon which it was based. a. Significant Factor at Trial: “an indigent defendant who seeks the appointment of an expert witness, at the Commonwealth’s expense, must demonstrate that the subject which necessitates the assistance of the expert is ‘likely to be a significant factor in his defense’” Husske, at 211-12 (quoting Ake 470 U.S. at 82-83) b. Particularized Showing of Need: i. “Mere hope or suspicion that favorable evidence is available is not enough to require that such help be provided.” Husske, at 212 (quoting State v. Mills, 420 S.E. 2d 114, 117 (N.C. 1992)) ii. "[C]onclusory assertions" that expert testimony regarding scientific testing may show the presence of errors that "'could have had a significant impact'" were not "'particularized' because they indicate[d] nothing more than [the defendant's] 'hope or suspicion.'" Commonwealth v. Sanchez, 268 Va. 161 (2004)

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iii. Note: the language used in Ake referred to a “threshold” showing of need. Ake 470 U.S. at 82-83 iv. Standard of review is abuse of discretion. Dowdy v. Commonwealth, 278 Va. 577 (2009), Barnabei v. Commonwealth, 252 Va.161 (1996)

c. Denial of Expert Assistance will result in a fundamentally unfair trial: i. “the mere ‘fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” Husske, at 212 (quoting Watkins v. Commonwealth, 229 Va. 469, 478 (1985) ii. On appeal this standard allows a consideration of the totality of the evidence and the case with no consideration for how the case might have been tried different with the assistance of the expert. Ex: In Husske the court upheld the denial of a DNA expert in part because the defendant was unable to show he was prejudiced by the lack of expert assistance. “Indeed, he could not make such a showing because, as the evidence of record reveals, he confessed to the crimes.” Husske at 213 (note: one of Husske’s issues on appeal was that this confession was coerced) ii. Sixth Amendment: Hinton v. Alabama, 571 U.S. __ (2014)(per curiam) (Appendix B) Found it to be ineffective assistance of counsel for counsel to not be aware of the laws relating to funding for experts “The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Slip op. at 11

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iii. Virginia Code: 1. Section 19.2-163 provides that in addition to the payment of court appointed counsel, “the circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case.” Va. Code sec. 19.2-163(2)

2. Section 19.2-233 provides for payment whenever in a criminal case a person renders any service required by law for which no specific compensation is provided, or whenever the service has been rendered pursuant to prior approval by the court.

III.

MAKING A REQUEST FOR FUNDS: a. Procedural Issues: 1. The right of the Commonwealth to oppose the motion a. Motions for Ex Parte Hearings on Motion for funding: i. Statutory right to Ex Parte request for expert in capital cases (sort of) Virginia Code 19.-264.3:1.3 allows a defendant in a capital case to make an ex parte showing of the need for an expert: a. Must give notice to the Commonwealth to designate another judge to hear the ex parte request for the expert. b. Must show, in an adversarial proceeding in open court, the need for an ex parte hearing by demonstrating a particularized need for confidentiality. c. If granted an ex parte hearing, must demonstrate in that hearing that the lack of confidential assistance will result in a fundamentally unfair trial.

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d. Must make a new request for an ex parte proceeding for each new request for an expert. ii. Defense requests for DFS testing are done ex parte (sort of) Virginia Code 9.1-1104 provides an accused may file a motion for the Department of Forensic Science to conduct scientific investigation. 1. Must file a motion in the court before which the case is pending 2. Must certify in good faith a belief that scientific investigation may be relevant to the criminal charge 3. The motion “shall be heard ex parte” 4. “Upon the request of the attorney for the Commonwealth . . . he shall be furnished the results of the scientific investigation.” 5. The evidence is usually in the hands of a Commonwealth agent thus they will be alerted to your request.

iii. Constitutional Challenges to the Commonwealth’s participation in Motions for Funds for Expert Assistance (Appendix C) 1. Equal Protection Arguments 2. Due Process Arguments 3. Fundamental Fairness Arguments 4. Sixth Amendment Arguments 5. Standing of the Commonwealth

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iv. Areas to be challenged: 1. Whether the defendant has made a sufficient showing of particularized need for an expert 2. The amount of funds be allocated

3. The expert to be retained

2. Efforts to Limit the Commonwealth’s Challenges: a. Limit Cross-Examination/Argument regarding the quality of the defendant’s expert If the Court is going to limit the funds a defendant can have to retain an expert the Commonwealth should not be allowed to challenge the quality of the expert the defendant is “forced” to retain

b. Limit the portions of the hearing in which the Commonwealth may participate Allow a partial adversarial process akin to what the capital and DFS statutes allow

ii. Practical Issues: (Appendix D) 1. Making the showings of: a. Particularized Need b. Significant Factor in client’s defense c. Prejudice by lack of expert assistance 2. Laying the Foundation: a. Know the “science”/field at issue:

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i. Showing your ignorance of the science is not sufficient to show you need an expert to assist you. ii. Use studies, research, reports to support your need for an expert. iii. Seek affidavits from potential experts regarding the issues in the case iv. Know what you need the expert for: 1. Educate you 2. Educate the trier of fact 3. The two tier approach v. Know (specifically) what you need the expert to do: 1. Ex: DNA a. Re-test the sample b. Challenge the interpretation of a multi-allele sample c. Low Copy Number testing d. Population Statistics e. Challenges to the degradation of the sample f. Challenges to the method of collection/preservation 2. Ex: Eyewitness Identification a. Memory/Perception b. Cross-Racial Identification c. Weapons Focus d. Photo Array composition e. Photo Array administration f. Interviewing technique 3. Challenge the “science” a. Confirmation bias b. Cognitive bias c. Lack of peer review d. Lack of protocols e. Lack of empirical research

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f. Lack of error rates g. Pattern evidence b. Know the experts in the field i. Is there an expert who can do what you want? ii. How many hours will it require? 1. To review the evidence 2. To consult with you 3. To prepare a report 4. To prepare for trial iii. How much will the expert charge? 1. Out of court 2. In court 3. Travel related expenses iv. Is the expert available? v. What are his/her qualifications? vi. How to challenge the Court’s “competitive bid” process for expert assistance. c. Know how the area of expertise fits into your defense. i. Will need to articulate how the area of expertise is a “significant” factor in the defense ii. Affirmative evidence for the defense

iii. Challenging the Commonwealth’s evidence

iv. Mitigation and Sentencing

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b. Alternative sources: i. See if the family/client can afford the retention of an expert ii. See if the family/client can afford the retention of an expert to make an initial evaluation of the case to strengthen your request for court funding iii. Seek assistance from academicians 1. Some schools operate labs/clinics specializing in a particular area of study Ex: University of Texas El Paso’s Eyewitness Identification Lab 2. Some professors/academicians may be willing to work on a case in exchange for the ability to use it for a research paper or study 3. Some professors/academicians may be willing to work for free because criminal cases are fun

IV.

FINDING EXPERTS a. Ask your friends: i. Criminal Defense Networks 1. Institutional Defenders: a. Contact local Federal, State and Capital Defender Offices for experts they have used in the past. b. Other State Institutional Defender Organizations i. Maryland PDs have a forensics unit ii. Online: North Carolina Indigent Defense Services Forensic Resources webpage: www.ncids.com/forensic/Experts 2. Organizations: NACDL, VACDL, etc a. Listserv recommendations b. On line resource pages c. Seminar speakers/materials b. Expert Service Providers: Organizations such as TASA

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c. Use the literature in the field: i. Authors of papers/studies/books in the relevant field ii. Read the footnotes and endnotes: 1. Use the studies cited in research papers 2. Use the studies cited in law review articles 3. Use the studies cited in case law notations iii. Participants in Task Forces, Working Groups, Research Papers iv. Google Scholar d. Use the cases in the field: i. Use cases where there has been an effort to admit this particular type of testimony ii. Google Scholar Case Law function e. Use the experts: Ask the expert you can’t afford to recommend someone who may be more local, more specialized to the area at issue in your case, (and potentially cheaper) f. Expert organizations: Many fields have professional organizations to which individuals will belong. Look for presentations at conferences, meetings, in journals, etc that are related to your relevant issue g. Use your community: i. University/college professors/graduate students ii. Local businesses h. DFS: Pros and Cons to consulting with individuals from DFS: 1. Difficult for the Commonwealth to challenge their credibility, etc 2. There is no work product/confidentiality to your conversations 3. Everything will be shared with the Commonwealth

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4. They have an institutional bias a. Their primary role is to assist with law enforcement i. Vet your expert, the prosecutor will: i. In seeking an expert find out if he/she has testified before and follow up with the parties involved as to how the expert did: 1. Presentation/credibility 2. Areas of challenge/weakness 3. Get copies of testimony ii. Use the Web: Using the Web (visible, invisible and deep) to Investigate Government Experts, by Richard Demarest, The Champion, November 2012 (Appendix E) Just as you would search for information on the Commonwealth’s experts, you should research your own.

V.

USING AN EXPERT: a. Set the rules i. Have a written agreement as to: 1. The hourly rate that will be charged for each category of work 2. The estimated number of hours needed 3. The cap/total amount you have available 4. The frequency with which you will be updated on: a. the amount of work done b. amount of hours expended c. The progress of their work 5. That payment is at the conclusion of the case (not the conclusion of their work) 6. That payment comes from the Commonwealth, not from you 7. That you will need a formal invoice to submit for payment

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ii. Confidentiality: 1. Make clear that the expert is working for you and the client. 2. Identify information you give to the expert that is privileged communications/information. iii. Speaking with the Commonwealth Discuss in advance how your expert should handle any inquiries from the Commonwealth. iv. Writing a Report: 1. Current discovery rules only require disclosure of “written reports . . . that may be within the accused’s possession, custody or control and which the defense intends to proffer or introduce into evidence at trial or sentencing” Va. Sup. Ct. Rule 3A:11(c)(1) 2. Only applies if there is a discovery order in place 3. Consideration should be given to whether a report is written and if so, what information is contained in the report

b. Experts and the Rules of Evidence: (Appendix F) i. Testimony by Experts: Rule 2:702 1. Admissibility a. Must use scientific, technical, or other specialized knowledge; b. To assist trier of fact to under the evidence or determine a fact in issue; c. Must show expertise through knowledge, skill, experience, training or education; AND d. The subject matter is beyond the knowledge and experience of ordinary persons such that the jury needs expert opinion in order to: i. Comprehend the subject matter ii. Form an intelligent opinion AND iii. Draw its conclusions

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2. Form of Opinion: may include opinions: a. Established with a reasonable degree of probability OR b. Address empirical data from which such probability may be established in the mind of the fact finder c. Testimony which opines on the credibility of another witness is not admissible ii. Basis of Expert Testimony: Rule 2:703(b) 1. Must be based on facts personally known or observed by the expert OR 2. Based upon facts in evidence iii. Opinion on Ultimate Issue: Rule 2:704 In a criminal case opinion testimony on the ultimate issues of fact is not admissible iv. Facts or Data Used: Rule 2:705 In a criminal case the facts on which an expert may give an opinion shall be disclosed in his testimony or set forth in a hypothetical question v. Use of Learned Treatises: Rule 2:706 In criminal cases if an expert acknowledges on crossexamination that a published work is a standard authority in the field, an opposing counsel may ask whether the witness agrees or disagrees with the statements in such work. This evidence is only to be used for impeachment of the expert’s credibility

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CHAPTER IV

Getting the Most Out of Your Experts: Preparing and Cross-Examining Experts on Competency and Other Mental Health Issues By Dr. Patricia A. Zapf

Psychology, Public Policy, and Law 2011, Vol. 17, No. 1, 1–53

© 2011 American Psychological Association 1076-8971/11/$12.00 DOI: 10.1037/a0021713

A META-ANALYTIC REVIEW OF COMPETENCY TO STAND TRIAL RESEARCH Gianni Pirelli

William H. Gottdiener

The Graduate Center at John Jay College of Criminal Justice (CUNY)

John Jay College of Criminal Justice, The City University of New York (CUNY), and St. Luke’s-Roosevelt Medical Center

Patricia A. Zapf John Jay College of Criminal Justice, The City University of New York (CUNY) The present study is a meta-analysis of competency to stand trial research. One meta-analysis was previously conducted in this area, but the large number of empirical studies that have been conducted since and the introduction of new instruments and revision of old instruments warranted updating and expanding upon the previously conducted study via contemporary meta-analytic methods. We metaanalyzed 68 studies published between 1967 and 2008 that compared competent and incompetent defendants on a number of demographic, psychiatric, and criminological variables. Categorical and continuous variables commonly investigated in competency research were coded and aggregated to generate cumulative effect sizes in the form of odds ratios and Cohen’s d statistics, and moderation was tested via meta-F and meta-regression analyses. The most robust findings were that defendants diagnosed with a Psychotic Disorder were approximately eight times more likely to be found incompetent than defendants without a Psychotic Disorder diagnosis and the likelihood of being found incompetent was approximately double for unemployed defendants as compared to employed defendants. The likelihood of being found incompetent was also double for defendants with a previous psychiatric hospitalization compared to those without a hospitalization history. Comparative data on 12 competency assessment instruments and three traditional instruments were also explored and the effect sizes associated with the competency measures were substantially larger (i.e., approximately one Cohen’s d-point) than those for the traditional measures. Limitations of the primary research and the previThis article was published Online First January 17, 2011. Gianni Pirelli, The Graduate Center at John Jay College of Criminal Justice (CUNY); William H. Gottdiener, John Jay College of Criminal Justice, The City University of New York (CUNY), and St. Luke’s-Roosevelt Medical Center; Patricia A. Zapf, John Jay College of Criminal Justice, The City University of New York (CUNY). Dr. Pirelli is currently a Staff Clinical Psychologist 3 at Greystone Park Psychiatric Hospital in Morris Plains, NJ. This manuscript is based on the first author’s doctoral dissertation, which received the 1st Place Dissertation Award from the New Jersey Psychological Association (NJPA) and the 2nd Place Dissertation Award from the American Psychology-Law Society (AP-LS), Division 41 of the American Psychological Association. This research was supported by a Grant-in-Aid from AP-LS and it was completed when the first author was a doctoral student in the Forensic Psychology Ph.D. program of The Graduate Center at John Jay College of Criminal Justice, The City University of New York (CUNY). Thanks go to the dissertation committee for their role in this research: Drs. William H. Gottdiener, Patricia A. Zapf, Michele Galietta, Nancy L. Ryba, Barry Rosenfeld, and Robert Bornstein. Thanks also go to Grazyna Kusmierska for serving as the second coder on this project. Correspondence concerning this article should be addressed to Gianni Pirelli, Psychology Department, Greystone Park Psychiatric Hospital, 59 Koch Avenue, Morris Plains, NJ 07950. E-mail: [email protected]

1

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2

PIRELLI, GOTTDIENER, AND ZAPF

ous and present meta-analyses are presented and future directions in this area are outlined. Keywords: adjudicative competency, competency to stand trial, trial competence, forensic mental health assessment, meta-analysis

The principle in Western jurisprudence that a person must be competent to stand trial1 has its roots in English common law dating back to the time of Edward I in the 14th century (Roesch & Golding, 1980) and is well documented in English case law and legal commentary (Blackstone, 1783; Frith’s Case, 1790). The concept of competency may have stemmed from defendants who remained mute in lieu of making a plea in which case the English courts sought to determine whether their muteness was a function of “malice” or “by visitation of God” (Melton et al., 2007). The right to be competent to stand trial in American courts can be traced back to the early 19th century (United States v. Lawrence, 1835) and has been recognized as both a constitutional guarantee and essential to ensuring the integrity of our criminal justice system (Drope v. Missouri, 1975; Youtsey v. United States, 1899). The current legal standard for competency to stand trial in the United States was set forth in Dusky v. United States (1960). In Dusky, the United States Supreme Court held: It is not enough for the district judge to find that ‘the defendant is oriented to time and place and has some recollection of events’, but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him. (p. 402)

The Dusky holding has been criticized for both its brevity and ambiguity by mental health professionals and legal scholars alike. Despite these concerns, the Dusky standard, or some variation of it, has been adopted by every state in the United States (Favole, 1983). Evaluating Competency Competency to stand trial evaluations have been regarded as “the most significant mental health inquiry pursued in the system of criminal law” (Stone, 1975, p. 200) with the number conducted throughout the Unites States each year estimated to be approximately 60,000 (Bonnie & Grisso, 2000). Over two decades ago Winick (1985) estimated that over $185 million was spent in the United States annually for competency evaluations and related treatment (i.e., competency restoration). One decade later he suggested that this number may be closer to double or triple his initial estimate (Winick, 1996). Now that another decade has passed it is likely that this number is larger still. In addition to monetary expenses, there are a number of costs associated with competency evaluations should they be conducted poorly. There is the potential 1

The terms competency to stand trial, adjudicative competency, and fitness to stand trial are used interchangeably throughout the manuscript.

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of violating a defendant’s due process rights by allowing an incompetent defendant to stand trial; or of violating a defendant’s civil rights by temporarily committing him or her to a forensic psychiatric facility for the purposes of competency restoration (typically via pharmacotherapy) when he or she is actually competent. These concerns are particularly salient when placed within the context of the base rates of incompetency. Base rates from competency referrals and ultimate decisions of competency have been found to vary between and within jurisdictions and settings (Murrie, Boccaccini, Zapf, Warren, & Henderson, 2008; Nicholson & Kugler, 1991), but the modal jurisdictional estimate of incompetency for referred defendants has been thought to be 20% (Roesch, Zapf, Golding, & Skeem, 1999). Such a low base rate has major implications for the use of screening measures used to identify clearly competent defendants thereby avoiding the costs, time, and resources required to conduct full competency evaluations. These considerations have been recognized by psychologists for decades and hundreds of articles and numerous books have been published since the 1960s aimed at developing and refining practice standards in the competency arena (e.g., Ackerman, 1999; Bonnie, 1992, 1993; Goldstein, 2003, 2007; Grisso, 1986, 2003; Heilbrun, 2001; Heilbrun, Marczyk, & DeMatteo, 2002; Melton, Petrila, Poythress, & Slobogin, 1997; Melton et al., 2007; Zapf & Roesch, 2009). Twelve2 competency assessment instruments have been developed over the past 40 years intended to address a defendant’s psycholegal abilities, ranging from informal checklists3 to structured, criterion– based scoring instruments: the Competency Screening Test (CST; Lipsitt et al., 1971), the Competency to Stand Trial Assessment Instrument (CAI; Laboratory of Community Psychiatry, 1973), the Georgia Court Competency Test (GCCT/GCCT-MSH; Nicholson, Briggs, & Robertson, 1988), the Interdisciplinary Fitness Interview (IFI/IFI-R; Golding, 1993), the Fitness Interview Test (FIT/FIT-R; Roesch, Zapf, Eaves, & Webster, 1998), the Computer-Assisted Determination of Competency to Proceed (CADCOMP; Barnard et al., 1991), the Competence Assessment for Standing 2 A new assessment measure was published after the present meta-analysis was completed and this manuscript was written: the Inventory of Legal Knowledge (ILK; Musick & Otto, 2010). According to the description on the Professional Assessment Resources (PAR) Website, “The ILK is not a test of adjudicative competence. It is solely a measure of response style; more specifically, it is a measure of a defendant’s approach to inquiries about his or her legal knowledge.” 3 Ames Robey (1965) is credited with developing the first formal measure of competency–a checklist for psychiatrists. Robey’s checklist consisted of three sections: Comprehension of Court Proceedings, Ability to Advise Counsel, and Susceptibility to Decompensation while awaiting or standing trial. Each section consisted of eight, seven, and five areas to explore, respectively. These sections were rated either, “OK,” “Mental Illness,” or “Intellectual Deficiency.” Mental Illness included an evaluation of cognition, orientation, apperception, and judgment, and (generally) excluded character disorders. Intellectual Deficiency referred to obtaining a Wechsler Adult Intelligence Scale IQ score below 60. Robey’s checklist has never been systematically studied (Roesch & Golding, 1980). Bukatman and colleagues (1971) followed with a series of interview questions designed to assess understanding of the current situation, as well as cooperation and participation in one’s own defense. Although these checklists and interview questions are rarely used today, they were instrumental in providing a foundation for the assessment instruments that followed. Following these early efforts at developing checklists/interview questions, forensic psychologists began to develop instruments that were more psychometrically sound, and therefore, more clinically useful.

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Trial for Defendants with Mental Retardation (CAST-MR; Everington & Luckasson, 1992), the Metropolitan Toronto Forensic Service (METFORS) Fitness Questionnaire (MFQ; Nussbaum, Mamak, Tremblay, Wright, & Callaghan, 1998), the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT-CA; Poythress et al., 1999), the Mosley Forensic Competency Scale (MFCS; Mosley, Thyer, & Larrison, 2001), the Evaluation for Competency to Stand Trial–Revised (ECST-R; Rogers, Tillbrook, & Sewell, 2004), and the Test of Malingered Incompetence (TOMI; Colwell et al., 2008). For a full description of most of the aforementioned instruments, including instrument development, administration, scoring, and psychometric properties, readers are referred to other sources (Cooper & Grisso, 1997; Goldstein, 2003; Grisso, 1986, 1992, 2003; Melton et al., 2007; Mumley, Tillbrook, & Grisso, 2003; Pirelli, 2008; Roesch, Zapf, Golding, & Skeem, 1999; Zapf & Viljoen, 2003). Traditional assessment instruments have also been utilized by competency examiners and researchers despite being designed to primarily measure broad psychological constructs (e.g., intelligence or personality). Although contemporary practice standards encourage the use of competency assessment instruments in evaluations (Grisso, 2003; Melton et al., 2007; Zapf & Roesch, 2009), many psychologists continue to rely heavily on traditional measures in forensic evaluations (Archer, Buffington-Vollum, Stredny, & Handel, 2006; Borum & Grisso, 1995; Nicholson & Norwood, 2000; Ryba, Cooper, & Zapf, 2003; Skeem & Golding, 1998). Three traditional measures most commonly researched in the competency arena are: the Minnesota Multiphasic Personality Inventory (MMPI/ MMPI-2); the Wechsler Adult Intelligence Scales (WASI, WAIS, WAIS-R, WAIS-III); and the Brief Psychiatric Rating Scale (BPRS). Notwithstanding the significance of the aforementioned measures’ development, the notion of trial competency is socially constructed and represents an open-textured, context-specific construct and, therefore, cannot be reduced to a fixed set of psycholegal abilities (see Roesch & Golding, 1980). Thus, no instrument will ever be considered the “gold standard” for measuring competency, which complicates the evaluation process. Data from competency instruments represent only one piece of a comprehensive competency assessment and must be integrated with information obtained from clinical interviews, other relevant test data, and observations/reports from collateral sources. A number of questions vis-a`-vis evaluating competency exist, including determining which variables are most closely related to findings of incompetency as well as which measures are best for use in competency evaluations. The present study was conducted, in part, to address such questions. Types of Competency Research The competency to stand trial literature is comprised of three major areas of investigation: correlates of competency; performance of incompetent and competent defendants on traditional psychological tests; and performance of incompetent and competent defendants on specialized competency assessment measures. Studies on the correlates of competency have primarily investigated the relationship between competency status (i.e., incompetent or competent) and various demographic, psycholegal/criminological, and clinical variables. The

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most commonly researched variables in this regard are: ethnicity, sex, employment status, and marital status (demographic); type of current criminal charge (e.g., violent or nonviolent) and competency evaluation history (psycholegal/ criminological); and psychiatric diagnosis and psychiatric hospitalization history (clinical). Researchers examining the performance of defendants on traditional assessment measures (e.g., the WAIS) have compared the scores of incompetent and competent groups in addition to investigating associations between scores on these measures and competency status and/or the aforementioned demographic, psycholegal/criminological, and clinical variables. While some researchers have analyzed one or more of the 12 existing competency assessment instruments in the same way, most have conducted psychometric studies, whereby reliability and validity evidence for the competency measures was investigated. Adjudicative competency research has been published steadily since the 1960s, but there is a dearth of review literature in the area. Grisso and colleagues have published three qualitative reviews/5-year research updates since 1992 (Cooper & Grisso, 1997; Grisso, 1992; Mumley, Tillbrook, & Grisso, 2003) and one meta-analysis was conducted by Nicholson and Kugler in 1991. Qualitative and quantitative reviews benefit psycholegal researchers and practitioners by providing summaries of acquired knowledge in the area of study, thereby facilitating conceptual and practical advancements (e.g., models, theories, standards of practice). Such reviews are particularly important in the competency arena because of the numerous empirical investigations conducted over the past 50 years. Qualitative and Quantitative Reviews of Competency Research Grisso and colleagues (Cooper & Grisso, 1997; Grisso, 1992; Mumley et al., 2003) conducted three qualitative 5-year reviews over the past two decades. The reviews were divided into seven areas, which, according to Grisso, paralleled the competency assessment process: (a) the systemic context of competency to stand trial evaluations; (b) conceptual definitions of competence and models for competency to stand trial assessment; (c) research on competency assessment methods; (d) characteristics of incompetent defendants; (e) interpretation of competency evaluation data; (f) issues in competency assessment of special populations; and (g) treatment to restore competence. The authors provided the field with a template for competency research and commentary by delineating the aforementioned topics, which set the stage for theory formulation and spurred further research; however, there are limitations inherent to most, if not all, qualitative reviews (including book chapters). First, no formal inclusion criteria typically exists; therefore, studies may not be formally vetted and they may be subsequently aggregated indiscriminately (i.e., the apples and oranges concept). Second, it is difficult to provide an overall summary of results and implications of research literature when the findings across studies are not completely consistent. Thus, authors typically engage in vote counting, such that evidentiary support is based on the number of studies with significant or nonsignificant findings rather than the magnitude of effect sizes. For example, three studies finding a nonsignificant relationship between two variables would likely be given more weight than one study with significant findings because effect size statistics are not calculated. Third, results across

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reviews are compared rather than combined. Thus, authors are only able to make relative judgments (i.e., there is an increase in research in this area compared to the previous review) as opposed to aggregating results to support or fail to support specific hypotheses. As a result of these limitations, reviews may be of limited utility to the intended audience (i.e., forensic mental health professionals, judges, and lawyers). A quantitative research synthesis, or meta-analysis, can address the limitations of qualitative research syntheses. Changes and differences in study outcomes across a large body of literature can be tracked via the calculation and analyses of effect size statistics. Furthermore, a meta-analyst can test hypotheses not previously evaluated in primary studies as well as those that cannot be tested by primary studies alone, including the investigation of potential moderator variables. The only meta-analysis published in the adjudicative competency arena to date was conducted by Nicholson and Kugler (1991). They synthesized the findings of 27 studies4 from 1967-1989 that compared competent and incompetent defendants and found the strongest correlates of incompetency to be: poor performance on competency assessment measures, a psychotic diagnosis, and psychiatric symptoms associated with severe psychopathology. Their findings are presented in greater detail below in the section entitled, Comparison with Nicholson and Kugler (1991). Approximately 200 empirical investigations have been published and numerous competency assessment instruments have been developed and/or revised since Nicholson and Kugler’s (1991) meta-analysis. The present meta-analysis was conducted to provide psycholegal researchers and practitioners with a summary of the cumulative knowledge gained over 50 years of research in this area and aimed to advance the state of knowledge in the field by testing hypotheses not previously tested in primary studies and those that cannot be tested by primary studies alone. Repetitive and/or ultimately uninformative studies may be conducted if a research literature is not meta-analyzed, as meta-analyses often serve as a new starting ground for research, practice, and policy in an area. As such, findings from the present meta-analysis should serve to close the door on some types of competency studies, while opening many new ones. Hypotheses The following hypotheses were tendered based on the findings of the aforementioned qualitative reviews, previous meta-analysis, and primary research published in the competency arena: H1: The mean base rate of incompetency will be between 20 and 30%. H2: Demographic variables will relate to competency status; specifically, incompetency would be associated with ethnicity (i.e., Non-White); sex (i.e., Female); employment (i.e., Unemployed); and marital status (i.e., Not Married). 4 Nicholson and Kugler (1991) reported the inclusion of 30 studies in their meta-analysis, and therefore, it has been cited as such over the years; however, only 27 independent studies were actually synthesized.

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a.

7

Six study-level variables will moderate these relationships: (a) type of publication; (b) source of competency decision; (c) type of competent group; (d) setting; (e) country; and (f) recruitment method. i. Note: type of competent group was developed for the purposes of this study. Five types of competent comparison groups were coded in the present study: referred defendants, purely competent defendants whose competency was never in question (e.g., inmates), those restored to competency, defendants who were initially deemed incompetent but then classified as competent by the researchers (i.e., study-competent), and a mixed group. Recruitment type was coded as either Archival/Retrospective (i.e., using data that has been previously collected, usually for clinical purposes) or Prospective (i.e., active recruitment of participants for the research study).

H3: Psychiatric and psycholegal variables (i.e., Psychotic Disorder diagnosis, previous psychiatric hospitalizations, previous competency evaluation history, and nonviolent current criminal charge) will relate to findings of incompetency. a.

Six study-level variables will moderate these relationships: (a) type of publication; (b) source of competency decision; (c) type of competent group; (d) setting; (e) country; and (f) recruitment method.

H4: Scores on competency assessment measures and traditional measures (i.e., intellectual and personality assessment instruments) will both relate to competency status; however, larger effect sizes are anticipated for the relationship between scores on competency assessment instruments and such decisions. Method The present meta-analysis included 68 studies published between 1967 and 2008 that compared competent5 and incompetent defendants on a number of demographic, psychiatric, and criminological variables. Literature Search A comprehensive search consisting of five methods was performed to identify empirical research studies in this area: (a) obtaining references of those found in acquired reports; (b) consulting with experts in the area; (c) searching electronic and print abstract databases; (d) incidental browsing of libraries and bookstores; and (e) searching citation indexes. Documents not available at local libraries were retrieved primarily through inter-library loan. A wide net was cast across five main electronic databases: (a) PsycInfo; (b) PsycArticles; (c) Medline; (d) Criminal Justice Periodicals Index 1981-2007; and (e) National Criminal Justice 5

The term “competent defendants” is used throughout this paper. While the majority of studies conducted in this area have used referred defendants as their sample, a few studies have used competent participants which have included psychiatric patients or inmates whose competence was never questioned.

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Reference Service, using three keywords: (1) competenc* to stand trial; (2) adjudicative competenc*; and (3) trial competenc* (Note: using an asterisk enables searching of various endings of the root word, such as competency and competence). Electronic searches yielded 154 potentially relevant reports and the other search methods yielded an additional 32 reports, equaling 186 potential reports. Although the first study considered for inclusion was published in 1965, the first study meeting inclusion criteria was published in 1967. Publication Bias Retrieval of all studies ever conducted is impossible; however, publication and sampling bias was addressed by conducting a thorough literature search, which included dissertations, and via statistical methods. The fail-safe N statistic, developed by Rosenthal (1979), was computed contemporaneously with effect sizes to estimate the potential effects of studies not retrieved with null results or results in the opposite direction of the mean effect size. Put differently, the fail-safe N is an estimate of the number of unpublished studies finding null results to render a cumulative effect size nonsignificant. Inclusion/Exclusion Criteria Although inclusion/exclusion criteria must be developed in an iterative manner, preliminary criteria were predetermined. Studies were considered for inclusion if they compared competent and incompetent defendants on at least one variable for which an effect size was calculable, if they were conducted in the United States or Canada, and if they included adult participants. Of the 186 potential reports reviewed, 88 met inclusion criteria. Of the 88, only 68 independent studies were identified and represented the total sample size (n ! 68) for the current meta-analysis (i.e., 20 reports were of redundant samples and added no new coding information). The reference list for all included studies is presented in Appendix A and the excluded study list is presented in Appendix B. Reports based on redundant samples are also included in each list when applicable. A study was typically excluded for one of four reasons. Of the excluded studies, (a) 35% did not utilize a competent comparison group; (b) 25% were solely competency restoration studies; (c) 16% met the main inclusion criteria but did not present sufficient data to code; and (4) 10% included only participants diagnosed with Mental Retardation. An additional 14% of the excluded studies were excluded for various other reasons (e.g., samples completely consisting of malingerers or coached simulators, a juvenile comparison group only, a case study, and an attorney survey). Coding and Interrater Reliability Coding manuals and forms were developed iteratively and revised as needed. Two forms/manuals were used in the present study: one for study-level variables and one for continuous outcomes (e.g., scores on a competency instrument), both of which are available from the first author. These forms were created in FileMaker Pro, per the suggestion of Lipsey and Wilson (2001), to facilitate citation retrieval and coding, and for the maintenance of records of retrieved reports. FileMaker Pro is particularly useful for meta-analysis research because

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coding is completed directly on the computer and data can be exported into Excel and other statistical software programs. Study-level variables were defined as those related to sample characteristics as well as study design. Variables associated with sample characteristics were: sample sizes, age, ethnicity, sex, education, employment status, marital status, psychiatric diagnosis, psychiatric and competency evaluation history, and legal history. Coding of the aforementioned variables mainly consisted of rates and proportions based on categorical data. Variables associated with study design were: type of publication, publication year, source of competency decision used for comparison, type of competent comparison group, setting of study, sample’s country of origin, method of participant recruitment, and type of sample (i.e., matched or random). Continuous outcome variables were coded for data derived from scores on both traditional and competency assessment measures. Specifically, scores on 11 published competency assessment instruments were recorded, as well as scores on intelligence and personality assessment instruments. The validation study of the Test of Malingered Incompetence (TOMI; Colwell, Colwell, Perry, Wasieleski, & Billings, 2008) was not included in the present meta-analysis because it was published after data collection and coding for this study was completed. All reports were coded by the first author, a fifth-year doctoral student at the time of the coding, and approximately 20% (i.e., 13) of the reports were coded by a second psychology doctoral student experienced in conducting meta-analyses who was also in her fifth year. The second-coding procedure consisted of a number of steps. An initial training session was conducted to review the coding manual and to provide an overview of the competency literature. This session was followed by the practice coding of 10 studies chosen via an online random number generator by both the first author and second coder. The coders met to address inconsistencies once practice coding was complete. The coding manual was subsequently revised to address all concerns elicited during the practice-coding step. A second training session was provided focusing on the revisions implemented in the coding manual. Finally, a systematic random selection procedure was used to generate interrater reliability statistics; specifically, every third study from the possible 68 studies (listed alphabetically) was chosen for inclusion in the second coding procedure. A total of 1,194 coding decisions (i.e., each variable coded was characterized as a decision) were made across 13 studies of which the first author and second coder demonstrated strong agreement. An interrater reliability analysis was conducted vis-a`-vis the coding of 1,025 continuous variables and high interrater reliability and significant statistical agreement and was found: intraclass correlation coefficient r ! .94 (0.94 – 0.95), p " .001. A kappa statistic (#) was computed to determine the level of agreement between the coders on 169 categorical variables; it was .76, and the agreement rate was approximately 84%. Although the interpretation of the kappa statistic has been debated over the years, existing benchmarks would classify a kappa of .76 as an overall high level of agreement. This kappa statistic is considered “substantial” based on Landis and Koch’s (1977) classification, “good” per Altman (1991); and “excellent” per Fleiss, Levin, and Paik (2003).

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Calculation of Effect Sizes and Statistical Modeling Odds ratios. The majority of data presented in the competency research literature can be conceptualized in the context of 2 $ 2 tables because it frequently involves an investigation of the relationship between competency status (i.e., competent/incompetent) and another dichotomous variables (e.g., psychotic/not psychotic); therefore, odds ratios (ORs) were calculated as effect sizes for these categorical data. ORs and their statistical variants (e.g., log-ORs, logit models, logistic regression models) are the recommended statistics for meta-analyses that utilize 2 $ 2 tables (Fleiss, 1981; Haddock, Rindskopf, & Shadish, 1998; Sanchez-Meca, Marin-Martinez, & Chacon-Moscoso, 2003; Sandercock, 1989; Schumacker, 2005). In the present meta-analysis, ORs were calculated to investigate the relationship between competency decision (i.e., incompetent/competent) and eight categorical variables: (a) ethnicity; (b) sex; (c) employment status; (d) marital status; (e) psychiatric diagnosis; (f) psychiatric hospitalization history; (g) competency evaluation history; (h) current criminal charge. Each variable was dichotomized in the following manner: ethnicity was analyzed as Non-White (yes/no); sex as Female (yes/no); employment as Unemployed (yes/no); marital status as Not Married (yes/no); psychiatric diagnosis as Psychotic Disorder (yes/no); psychiatric hospitalization history as Previous Psychiatric Hospitalization (yes/no). Competency evaluation history as Previous Competency Evaluation (yes/no); and, current criminal charge as Current Violent Charge (yes/no). Using ORs as effect sizes and dichotomizing the aforementioned variables enabled a straightforward interpretation from which the actual level of likelihood was elicited (e.g., “Female defendants are X times more likely to be found Incompetent”). While ORs are used in the initial analyses because they are easier to interpret from a descriptive standpoint (i.e., levels of likelihood), log-ORs are easier to interpret than ORs in the context of meta-regression analyses using categorical antecedent variables because they are centered at 0, whereas ORs are centered at 1. After each variable was dichotomized and analyzed in relation to competency status, the following statistics were calculated: ORs and their associated 95% confidence intervals (CIs), z- and p-values, study weights, the cumulative random effects ORs (i.e., combined effect size of included studies on a particular variable), the median OR, fail-safe N (a publication bias statistic), and Q (a homogeneity statistic). All effect size calculations were performed with Comprehensive Meta-Analysis (CMA; Borenstein, Hedges, Higgins, & Rothstein, 2005) a widely used meta-analysis software package. Once all effect sizes were calculated, they were weighted by the inverse of their variance and summed to generate an overall mean effect size statistic (i.e., the cumulative OR); a process that also controls for sampling error (Hedges & Olkin, 1985). Cumulative ORs were generated via a random effects model, which assumes that “each observed effect size differs from the population mean by subject-level sampling error plus a value that represents other sources of variability assumed to be randomly distributed” (Lipsey & Wilson, 2001, p. 119). The decision to use a random effects model, rather than a fixed effects model, is subjective and is based on the analyst’s perspective on the included studies. Cooper and Hedges (1994) recommended using a random effects

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model if the analyst conceptualizes the studies as different from each other in ways too complex to account for by only a few study characteristics, and if the intent of the meta-analysis is “to make inferences about a universe of such diverse studies” (p. 526). In short, there is simply too much potentially uncontrolled variance in this research area to use a fixed effects model. Standardized and unstandardized mean differences. The main effect size statistics used in the present meta-analysis to investigate the differences between competent and incompetent defendants on continuous outcome measures (i.e., scores on competency and traditional assessment instruments) were unstandardized and standardized mean differences, also calculated with the use of the CMA software. The unstandardized mean difference was calculated for data generated from the same exact measure or scale across studies (e.g., the MMPI-2). The standardized mean difference (a Cohen’s d statistic) was calculated when the same construct was measured across studies by a different measure or scale (e.g., Verbal IQ scores measured by the WAIS, WAIS-III, and WASI). Cohen (1977, 1988) set forth the following widely accepted interpretive ranges for standardized mean difference effect sizes: !.20 ! Small; .50 ! Medium; ".80 ! Large. These ranges can serve as useful guidelines, but they were not empirically derived and interpretations of effect sizes are dependent on the area of study (e.g., a Medium effect size according to Cohen’s ranges may be considered Large in some domains); therefore, these statistics were converted into ORs for interpretive purposes. Moderator analyses. Three steps were taken to formally test for moderation related to the analyses of categorical variables: subgroup analyses, meta F-tests, and meta-regression analyses (see Lipsey & Wilson, 2001, pp. 208-220, for the SPSS macros used). Subgroup analyses consisted of calculating ORs for each level of six study-level variables hypothesized to serve as potential moderators: (a) type of publication; (b) source of competency decision; (c) type of competent group; (d) setting; (e) country; and (f) recruitment. The meta F-test represents an analog to ANOVA, whereby each moderator is formally tested for statistically significant differences between its levels. For example, a meta F-test analysis of type of publication within the marital status variable would entail a calculation of the ORs elicited from journal articles, dissertations, and books for which not married (yes/no) was coded to determine if the effect sizes for the marital status variable statistically differ across types of publication. Bonferronitype corrections were used to account for the potential of inflated Type I error. Meta-regression analyses are conceptually equivalent to multiple regression analyses insofar as predictive models are tested; however, in meta-regression analyses, the effect size serves as the outcome variable and the moderators being explored serve as the antecedent variables (i.e., predictors). Assessment of Study Quality Assessment of study quality is an important process in meta-analysis and can be investigated empirically by an investigation of the abovementioned moderators hypothesized to relate to study quality. The frequencies and percentages of each potential moderator across all 68 studies are presented in Table 1.

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Table 1 Study Descriptors of All Included Studies (n ! 68) Descriptor Number of studies (%) Type of publication Article 56 (82.4) Dissertation 10 (14.7) Book 2 (2.9) Source of competency decision Psychiatrist(s) 20 (29.4) Mixeda 17 (25.0) Mental Health Professional Teama 14 (20.6) Court 13 (19.1) Psychologist(s) 2 (2.9) Not reported 2 (2.9) Type of competent group Referred 59 (86.8) Pure 4 (5.9) Restored 3 (4.4) Study-competent 1 (1.5) Mixed 1 (1.5) Setting Inpatient 46 (67.6) Mixed 11 (16.2) Outpatient 9 (13.2) Other 1 (1.5) Not reported 1 (1.5) Country USA 52 (76.5) Canada 16 (23.5) Recruitment Archival/retrospective 40 (58.8) Prospective 28 (41.2) Type of setting Random/convenience 59 (86.8) Matched 8 (11.8) Other 1 (1.5) a A Mental Health Professional Team was characterized as two or more mental health professionals working together to arrive at one decision, whereas a Mixed decision referred to one that was based on various independent decisions.

Homogeneity Analysis Homogeneity analyses were conducted on each of the eight categorical variables after descriptive and effect size statistics were calculated, producing a Q statistic. A significant Q indicates that the variability among effect sizes is greater than expected from sampling error alone. Formal moderation analyses were conducted if homogeneity statistics indicated significant variance across studies not because of sampling error (Hedges & Olkin, 1985). The impact of the aforementioned moderators on each effect size was investigated via meta F-tests and meta-regression analyses to determine the extent to which various aspects of study design effect or predict the calculated effect sizes.

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Results The results are presented based on each hypothesis below. H1: The Mean Base Rate of Incompetency Will Be Between 20 and 30% The first hypothesis was supported, as the base rate of incompetency was 27.5% across 59 nonmatched samples (Median ! 25.3, Mode ! 10); a onesample t-test was conducted to produce a 95% CI around the mean estimate (25.7–33.4). The following is a presentation of additional descriptive statistics related to the included studies. Sample characteristics for all study participants (incompetent and competent) across all 68 included studies are presented in Table 2 (n ! 26,139). It is noteworthy that only approximately half of the studies included female participants in their samples. Characteristics of the incompetent (n ! 6,428) and competent (n ! 19,711) sub-samples of participants across all included studies are presented in Table 3. Although the sample studies are relatively large when combined, most of the data was derived from few studies (as is illustrated in the second column) and, therefore, the following descriptive statistics should be considered in that context. In Table 2 Sample Characteristics for All Included Studies (n ! 68) Characteristic Study/sample Date of publication Sample size (n)

Number of studies

Mean

Range

68 68

1989.9 384.5 (median ! 176) 27.5 (median ! 25.3) (mode ! 10)

1967–2007 21–8,416

% Incompetent Demographics Age % Male Included Females % White % Not Married % Unemployed Education level (years) Diagnosis % Psychotic disorder % Personality disorder % Substance use disorder % Mood disorder % Mental retardation Psychiatric history % Prev. psych. hospitalization(s) Competency history % w/Prev. competency eval(s) Criminal history % w/Prior arrest(s) % Current violent crime a

59

7–70

22 41 37 22 10 8 14

33.4 83.0 — 53.4 80.7 64.5 10.4

29.8–37.6 0–100 (50–100)a — 17–84 54–92 24–88 7.8–12

25 16 16 15 16

44.4 18.3 17.8 13.4 6.3

20–82 0–47 0–72 0–32 0–23

5

46.1

22–56

3

31.5

16–52

5 18

61.5 52.9

29–75 25–75

Reflects the range in mixed-sex samples.

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22 41

35.0 84.1

29–40 0–100 (45–100)a 0–83 56–100 29–96 7–12

Range 22 41

0–64 0–73 0–84 0–38 0–27 0–50 0–80

22.2 27.9 22.0 13.4 5.2 32.3 25.9

63.4 40–78 55.1 20–75 study with only 1% of

56.9 77.3 58.2 10.5

27–38 0–100 (53–100)b 12–91 52–86 19–80 8–12

Range 31.8 81.9

Competent defendants (n ! 19,711) Number of studies Mean

% White 23 47.7 22 % Not Married 10 84.0 10 % Unemployed 8 70.8 8 Education level (years) 14 10.4 14 Diagnosis % Psychotic disorder 25 66.5 30–100 25 % Personality disorder 16 8.2 0–31 17 % Substance use disorder 16 13.0 0–60 17 % Mood disorder 15 13.4 0–45 15 % Mental retardation 16 7.5 0–25 16 Psychiatric history % Prev. psych. hospitalization(s) 5 53.4 18–79 6 Competency history % w/Prev. competency eval(s) 4 (0–14)c 23.6 9–40 4 Criminal history % w/Prior arrest(s) 4 59.6 18–78 4 % Current violent crime 18 50.8 25–83 18 a When female-only samples were removed (n ! 3). b When female-only samples were removed (n ! 3) and one competent males. c When one study with 80% was removed.

Characteristic Demographics Age % Male

Incompetent defendants (n ! 6,428) Number of studies Mean

Table 3 Incompetent and Competent Sub-Sample Characteristics Across Studies (n ! 68)

14 PIRELLI, GOTTDIENER, AND ZAPF

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contrast to their competent counterparts, incompetent defendants were slightly older (35 years old vs. 31.8), predominantly Non-White (52.3 vs. 43.1%), had a higher unemployment rate (70.8 vs. 58.2%), and a greater percentage were not married (84 vs. 77.3%). The biggest differences between incompetent and competent defendants were on psychiatric variables. Most incompetent defendants were diagnosed with a Psychotic Disorder (66.5%) and had a previous psychiatric hospitalization (53.4%), while few incompetent defendants were diagnosed with a Personality Disorder (8.2%). This breakdown is different from the competent group, wherein only 22.2% were diagnosed with a Psychotic Disorder, 32.3% had a previous psychiatric hospitalization, and 27.9% were diagnosed with a Personality Disorder. While there were a number of distinct differences, incompetent and competent defendants were characteristically similar across some variables. Specifically, the vast majority of all defendants were male (84.1% incompetent, 81.9% competent); had a prior arrest history (59.6% incompetent, 63.4% competent); approximately half had a current violent criminal charge (50.8% incompetent, 55.1% competent); and both groups had a mean of approximately 10 years of education (10.4 years for the incompetent group, 10.5 years for the competent group). H2/H2a: Demographic Variables Will Relate to Competency Status and These Relationships Will Be Moderated by Six Study-Level Variables The relationship between competency status and four categorical variables was investigated: (a) ethnicity (i.e., Non-White); (b) sex (i.e., Female); (c) employment (i.e., Unemployed); and (d) marital status (i.e., Not Married). Ethnicity. Across studies that presented ethnicity data (n ! 22), the cumulative OR was 1.39 (95% CI: 1.08, 1.77, Median ! 1.38). As such, Non-White defendants were approximately one and a half times more likely to be found incompetent than White defendants, and the fail-safe N was 133 (i.e., there would need to be 133 unpublished studies reporting null results to reduce the OR to nonsignificance). Homogeneity analysis was conducted to determine if the variability across ORs is larger than expected from sampling error alone. Significant heterogenity was found: Q(21) ! 95.1, p " .01; therefore, subgroup analysis was conducted to explore such variability across potential moderators. F-tests were conducted to formally determine if the ORs statistically differ across the levels of each moderator. ORs for two of the six moderator groups (i.e., type of competent group and recruitment) significantly differed at a .01 alpha level. Specifically, the effect size for the pure competent comparison group (OR ! 2.33) was significantly larger than both the referred (OR ! 1.20) and restored groups (OR ! 1.53); and, the OR for studies using a prospective recruitment method (OR ! 1.77) was significantly larger than those utilizing an archival/retrospective method (OR ! 1.17). The meta-regression model including the six moderators as predictors and the cumulative OR as the outcome was nonsignificant. Sex. The cumulative OR was 1.12 (95% CI: 0.86, 1.50, Median ! 1.15) for studies with available sex data (n ! 18), such that female defendants were essentially equally as likely as male defendants to be found incompetent (fail-safe N ! 0). Significant heterogenity was found: Q(17) ! 48.5, p " .01. ORs for three of the six moderator groups significantly differed: type of publication, country,

IV - A - 15

16

PIRELLI, GOTTDIENER, AND ZAPF

and recruitment. The effect size for the relationship between sex and competency status presented in the book by Roesch and Golding (1980) was significantly lower (OR ! 0.001) than those found in the journal articles (OR ! 1.19) and dissertations (OR ! 0.98). This finding is not particularly compelling, however, because Roesch and Golding’s research only included two female participants, both of whom were deemed competent. A more salient finding was the difference in effect sizes between studies conducted in the United States and Canada. Female defendants were twice as likely (OR ! 2.03) to be found incompetent than males in the four studies conducted in Canada for which sex data was available (i.e., Crocker, Favreau, & Caulet, 2002; Robertson, Gupton, McCabe, & Bankier, 1997; Roesch, Eaves, Sollner, Normandin, & Glackman, 1981; Rogers, Gillis, McMain, & Dickens, 1998) as compared to the 14 studies conducted in the United States, whereby the finding was neutral (OR ! 1.10). Last, the cumulative OR for the 14 studies using an archival/retrospective sample recruitment method was significantly larger than the four studies utilizing prospective sampling; however, both effect sizes were relatively neutral (ORs ! 1.20 and 0.77). The predictive meta-regression model was analyzed and found to be nonsignificant. Employment. Eight studies (n ! 8) included information relevant to employment (i.e., frequencies of unemployed competent and incompetent defendants) and the cumulative OR was 2.07 (95% CI: 1.38, 3.10, Median ! 1.77); therefore, unemployed defendants were twice as likely to be found incompetent as are employed defendants (fail-safe N ! 54). Significant heterogenity was found: Q(7) ! 15.8, p " .05; however, meta F-tests for type of publication and setting were not computable because of the limited variability within the moderator groups and no significant differences were found for comparisons across the other four moderators. A meta-regression model with only three predictors (i.e., type of competent group, country, recruitment) was investigated because of the lack of variability within the other moderator groups, but the model was not significant. Marital status. The cumulative OR was 1.43 (95% CI: 1.09, 1.89, Median ! 1.65) from studies in which marital status data was available (n ! 10), such that defendants who were not married were approximately one and a half times more likely than married defendants to be found incompetent (fail-safe N ! 15). Significant heterogenity was not found: Q(9) ! 6.43, p % .05; therefore, neither meta F-tests nor meta-regression analyses were conducted. H3/H3a: Psychiatric and Psycholegal Variables Will Relate to Competency Status and These Relationships Will Be Moderated by Six Study-Level Variables Psychiatric diagnosis. The cumulative OR was 7.96 (95% CI: 5.99, 10.60, Median ! 9.28) for studies with diagnostic data (n ! 25), such that defendants diagnosed with a Psychotic Disorder were nearly eight times more likely to be found incompetent than those without such a diagnosis. These odds are considerably larger than any of those found throughout the present study. There would need to be 5,901 unpublished studies reporting null results to reduce the OR to nonsignificance (i.e., fail-safe N). Significant heterogenity was found: Q(24) ! 119.1, p " .01; therefore, a subgroup analysis was conducted. Only levels within the type of competent comparison group significantly differed, studies using pure

IV - A - 16

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17

competent comparison groups found defendants much more likely to be found incompetent when diagnosed with a Psychotic Disorder as compared to studies consisting of referred (OR ! 7.94), mixed (OR ! 12.95), and restored (OR ! 1.71) competent defendants. This finding must be interpreted with caution because only two studies used pure competent comparison groups (i.e., Hoge et al., 1996, 1997a); in addition, the OR (33.92) is somewhat misleading when aggregated. The OR calculated from the Hoge et al. (1997a) study was 11.3, as &65% of incompetent defendants were diagnosed with a Psychotic Disorder (i.e., 103 of 159) and 14% of competent defendants had such a diagnosis (i.e., 29 of 207). The OR generated from Hoge et al. (1996) is 207.4 because 30 of the 42 incompetent defendants were diagnosed with a Psychotic Disorder, while none of the competent defendants (n ! 42) had been given that diagnosis. A meta-regression analysis resulted in a nonsignificant model (p % .05). Psychiatric hospitalization history. The cumulative OR was 1.86 (95% CI: 1.09, 3.20, Median ! 1.58) for studies in which psychiatric hospitalization history was available (n ! 5), such that defendants who had a previous psychiatric hospitalization were nearly twice as likely as defendants without such history to be found incompetent (fail-safe N ! 48). Significant heterogeneity was found: Q(4) ! 15.5, p " .01; however, neither meta F-tests nor meta-regression analyses could be conducted. As noted, only five studies made psychiatric hospitalization history data available, and as such, virtually no variability across moderator groups existed. Competency evaluation history. Only three studies (n ! 3) presented data on defendants’ competency evaluation history. For interpretive purposes, competency rather than incompetency was used as the criterion in this analysis because of the nature of the data. The cumulative OR was essentially neutral (OR ! 1.07; 95% CI: 0.10, 11.20; Median ! 2.47); that is, defendants who had a prior competency evaluation were no more likely to be found competent (or incompetent) than those who did not have such an evaluation (fail-safe N ! 0). Although heterogeneity was found: Q(2) ! 90.04, p " .01, neither F-tests nor meta-regression analyses were conducted because of the invariability within moderator groups. Current criminal charge. Competency, rather than incompetency, was used once again as the criterion in this analysis because of the nature of the data. Defendants with a current violent criminal charge were 1.25 times more likely to be found competent than those with a current nonviolent charge (OR ! 1.25; 95% CI: 1.00, 1.60; Median ! 0.87; fail-safe N ! 60) across 18 studies that presented data on type of current criminal charge (i.e., violent or nonviolent). Significant heterogeneity was found: Q(17) ! 74.94, p " .01; meta F-tests for all potential moderator variables were conducted (with the exception of type of competent group), but no significant differences were found within groups. A meta-regression model was tested, but it was found to be nonsignificant. H4: Scores on Competency Assessment Measures and Traditional Measures Will Relate to Competency Decisions, With Larger Effect Sizes Associated With Scores on Competency Assessment Instruments The final hypothesis tested in this study was that scores on traditional measures (i.e., intellectual and personality assessment instruments) would be related to competency decisions, but larger effect sizes were anticipated for the

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18

PIRELLI, GOTTDIENER, AND ZAPF

relationship between scores on competency assessment instruments and such decisions. Scores on competency assessment instruments and traditional measures were coded as continuous outcome data in the present meta-analysis. The following two sections present descriptive information and effect size data generated from studies using competency assessment instruments and those using traditional measures. Competency assessment instruments. The research studies conducted on each competency instrument, including their respective total sample sizes and the inclusion/exclusion and coding status in the present meta-analysis, are presented in Table 4. (Note: dashes (') are used to symbolize missing information related to specific sample sizes, and the plus/minus symbol (() is used to acknowledge approximate total sample sizes.) As mentioned earlier, a number of studies incorporated competency assessment measures into their designs; however, most of the published reports did not present data from which effect sizes were calculable. Although numerous studies have incorporated competency measures into their designs, only eight independent studies have compared scores of competent and incompetent defendants on such measures to the extent that an effect size was calculable. Furthermore, sufficient data was only available for five of these measures (i.e., CST, GCCT-MSH, FIT, MFQ, MFCS), and only the CST and GCCT-MSH have such data from more than one independent study.6 Descriptive and effect size data are presented in the following tables; however, neither meta-F nor meta-regression analyses were performed because of insufficient variability across various levels of the moderators (e.g., type of setting). Two studies that investigated the CST presented data sufficient to calculate effect sizes. Competent defendants (M ! 17.0, SD ! 8.8) scored approximately 10 points higher than their incompetent counterparts (M ! 26.7, SD ! 8.3) on the CST (unstandardized mean difference ! 9.8). The small and disproportionate sample sizes in the two studies are noteworthy (i.e., incompetent group total sample size, n ! 26; competent group sample size, n ! 131). Four studies investigated the GCCT-MSH and reported sufficient data. Competent defendants (M ! 81.3, SD ! 16.9) scored approximately 25 points higher than their incompetent counterparts (M ! 55.6, SD ! 25.9) on the GCCT-MSH (unstandardized mean difference ! 25.76, Median ! 27.1). The small sample sizes across studies are noteworthy (i.e., incompetent group total sample size, n ! 102; competent group sample size, n ! 335). The FIT, MFQ, and MFCS were used in one included study each; therefore, those data were combined with the data on the CST and GCCT-MSH to investigate the difference between competent and incompetent defendants on competency measures, in general. Standardized mean difference statistics (i.e., Cohen’s d) were calculated rather than unstandardized differences to account for the use of different measures used to operationalize the same construct (e.g., competency to stand trial). The nine sources from which the effect sizes were generated are 6 Two studies (Gothard, Rogers, & Sewell, 1995; Otto et al., 1998; Rogers, Sewell, Grandjean, & Vitacco, 2002) presented data on specific scales of competency measures. Otto and colleagues (1998) reported data on the Understanding, Reasoning, and Appreciation scales of the MacCAT-CA, and Gothard et al. (1995) and Rogers et al. (2002) presented data on the GCCT’s Atypical Presentation Scale (APS) developed by Gothard and colleagues in 1995.

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Table 4 Inclusion Status and Sample Sizes for Studies Using Competency Instruments (n ! 59) Included Incompetent, Competent, Study (Yes/No) Total, n n n Competency Screening Test (CST) Lipsitt et al. (1971)a Y 43 19 24 Shatin (1979) Y 21 9 12 Shatin & Brodsky (1979) Roesch & Golding (1980)a Y 128 5 123 Nottingham & Mattson (1981)a Y 50 4 46 Randolph et al. (1981)a Y 25 15 10 Randolph et al. (1982)a Y 39 10 29 Nicholson (1988) Y 132 11 121 Nicholson, Briggs, & Robertson (1988)a Nicholson, Robertson, et al. (1988)a Bagby et al. (1992) Y 311 121 190 N 25 25 0 Chellsen (1986)a Paramesh (1987) N 260 — — Schreiber et al. (1987)a N 120 — — Roach (1994) N 72 30 42 Smith & Hudson (1995) N 55 — — Smith (1996) Ustad et al. (1996) N 111 111 0 Total 15 ! 8Y/7N 1,392 358( 597( Competency to Stand Trial Assessment Instrument (CAI) Roesch (1978) N 30 4 26 Roesch & Golding (1980) Schreiber et al. (1987) N 120 — — Siegel & Elwork (1990) N 41 41 0 Robbins et al. (1997) N 60 17 43 Bertsch et al. (2002) N 20 10 10 Total 6 ! 0Y/6N 331 132( 79( Georgia Court Competency Test (GCCT/GCCT-MSH) Nicholson (1988) Y 132 11 121 Nicholson, Briggs, & Robertson (1988)a Nicholson, Robertson, et al. (1988)a Johnson et al. (1990)a Y 120 9 111 Nicholson & Johnson (1991) Wildman et al. (1990)a Y 100 52 48 Bagby et al. (1992) Y 311 121 190 Gothard (1993) Y 108 23 85 Gothard, Rogers, & Sewell (1995) Gothard, Viglione, et al. (1995) Rogers et al. (1996) N 125 20 105 Roach (1994) N 72 30 42 Ustad et al. (1996) N 111 111 0 Bertman (2000) N 26 26 0 (table continues)

IV - A - 19

20

PIRELLI, GOTTDIENER, AND ZAPF

Table 4 (continued) Included Incompetent, Competent, Study (Yes/No) Total, n n n Bertman et al. (2003) Manguno-Mire et al. (2007) N 21 12 0 Total 10 ! 5Y/5N 1,126 415 702 Interdisciplinary Fitness Interview (IFI/IFI-R) Golding et al. (1984)a Y 75 17 58 Barnard et al. (1991)a N 50 50 0 Barnard et al. (1992) 99 99 0 Holmes (1991) N — — — Total 3 ! 1Y/2N 174( 116( 58( Fitness Interview Test (FIT/FIT-R) Bagby et al. (1992) Y 311 121 190 McDonald et al. (1991) Y 243 99 144 Viljoen et al. (2003) Y 96 13 83 Whittemore et al. (1997) Y 236 26 210 Zapf & Roesch (1998) Y 178 20 158 Zapf et al. (2001) Y 100 10 90 N 270 — — Menzies et al. (1983)a Zapf & Roesch (1997) N 57 — — Zapf (1999) N 100 — — Zapf & Roesch (2001, 2005) Viljoen et al. (2002) N 212 — — Viljoen & Zapf (2002) 160 — — Total 10 ! 6Y/4N 1,924 309( 1,033( Computer-Assisted Determination of Competency to Proceed (CADCOMP) Barnard et al. (1991) N 50 50 0 Barnard et al. (1992) 99 99 0 Nicholson et al. (1994) N 133 133 0 Roach (1994) N 72 30 42 Buigas (1996) N 74 — — Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) Everington (1989, 1990) N 93 11 82 Everington & Dunn (1995) N 35 20 15 Peacock (2005) N 68 9 59 Bennett (2006) N 60 60 0 Everington et al. (2007) N 95 0 95 Stoops et al. (2007) N 1 1 0 Total 6 ! 0Y/6N 352 101 251 Metropolitan Toronto Forensic Service METFORS) Fitness Questionnaire (MFQ)

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COMPETENCY TO STAND TRIAL META-ANALYSIS

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Table 4 (continued) Study Nussbaum et al. (1998) Nussbaum & Amaral (2001) Total MacArthur Competence Assessment Tool — Criminal Adjudication (MacCAT-CA) Otto et al. (1998) Poythress et al. (1999) Zapf et al. (2005) Tillbrook (2001) Viljoen et al. (2003) Zapf (1999) Zapf & Roesch (2001, 2005) Redlich et al. (2003) Ryba (2005) Bennett (2006) Pinals et al. (2006) Total Mosley Forensic Competency Scale (MFCS) Mosley et al. (2001) Evaluation for Competency to Stand Trial-Revised (ECST-R) Grandjean (2004) Rogers et al. (2003) Jackson et al. (2005) Tillbrook (2001) Rogers et al. (2002, 2003) Rogers et al. (2004) Gabel (2007) Vitacco et al. (2007) Total Test of Malingered Incompetence Colwell et al. (2008)

Included Incompetent, Competent, (Yes/No) Total, n n n Y 44 15 29 N 144 — — 2 ! 1Y/1N 188 15( 29(

Y

729

283

446

Y Y N

70 96 100

33 13 —

37 83 —

0 37 60 — 426(

17 0 0 — 583(

N 17 N 77 N 60 N — 8 ! 3Y/5N 1,149( Y

75

19

56

Y

48

30

18

Y Y

137 70

41 33

96 37

N N

129 100

42 —

87 —

146(

238(

5 ! 3Y/2N N

484( 392

30

362

presented in Table 5. Incompetent and competent defendants’ scores across competency assessment instruments significantly differed and a rather large effect size was found: standardized effect size (d) ! 1.4 (1.1, 1.7), p " .001, which is equal to an OR of 2.5.7 The relatively small total sample sizes for both incompetent (n ! 214) and competent defendants (n ! 574) are noteworthy in this analysis. Traditional assessment instruments. The three traditional measures most commonly researched in the competency arena are presented in Table 6: the MMPI/MMPI-2; the WASI, WAIS, WAIS-R, WAIS-III; and the BPRS. A num7

ORs are presented for continuous data whereby standardized mean difference statistics were calculated to maintain continuity throughout the paper (Tables 24, 27–32). The formula provided by Borenstein (2009) was used to convert the d statistic to an OR, whereas the OR and its variance are: [ln(o)] ! )d √3 V[ln(o)] ! )2vd3.

IV - A - 21

Incompetent group, Competent group, Study Measure M (SD) n M (SD) n Cohen’s da (CI) Odds ratio Randolph et al. (1981) CST 19.9 (9.3) 15 29.0 (3.8) 10 1.2 (0.6,1.9) 2.18 Nicholson (1988) CST 14.1 (8.1) 11 24.4 (8.5) 121 1.2 (0.3,2.1) 2.18 Nicholson (1988) GCCT-MSH 51.3 (24.8) 11 81.6 (18.3) 121 1.6 (0.9,2.3) 2.90 Johnson et al. (1990) GCCT-MSH 66.0 (25.9) 9 79.4 (16.5) 111 0.8 (0.1,1.5) 1.45 Wildman et al. (1990) GCCT-MSH 44.4 (30.5) 52 79.8 (21.5) 48 1.3 (0.9,1.8) 2.36 Gothard et al. (1995) GCCT-MSH 60.5 (15.4) 30 84.5 (7.3) 55 2.2 (1.7,2.8) 3.99 McDonald et al. (1991) FIT 42.9 (26.2) 63 28.0 (6.6) 144 0.9b (0.7,1.3) 1.63 Nussbaum et al. (1991) MFQ 9.8 (3.8) 15 15.9 (3.0) 29 1.9 (1.1,2.6) 3.45 Mosley et al. (2001) MFCS 10.2 (7.4) 19 17.0 (4.1) 56 1.3 (0.8,1.9) 2.36 Overall n/a 214( n/a 574( 1.4 (1.1,1.7) 2.54 a A positive difference denotes higher scores for the Competent group. b The FIT standardized mean difference score was calculated as a positive integer to maintain overall consistency with the model because it is the only measure presented in the table whereby higher scores are associated with “incompetency”. ( Total sample sizes reflect independent samples only (i.e., the Nicholson, 1988, sample was included once in the calculations).

Table 5 Standardized Mean Difference (Cohen’s D) Statistics for Competency Measures (n ! 8)

22 PIRELLI, GOTTDIENER, AND ZAPF

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ber of other measures have been included by researchers over the years; however, most have only been included in single studies (see Table 7). Each of these measures consists of numerous scales and subscales, but most of the studies conducted in this area have only presented data on total scores or scores on a few scales. The available data for each measure is presented in the following tables. Effect sizes were calculated in the form of standardized mean differences, but neither meta-F nor meta-regression analyses were conducted because of the insufficient variability across the various levels of moderators. The Wechsler instruments have been included in 36 competency studies, but very few authors have presented comparative data on competent and incompetent defendants across three main indices of cognitive functioning: Full Scale IQ, Performance IQ, and Verbal IQ. The following results are based on analysis of data from few studies with relatively small sample sizes. Three studies investigated the Full Scale IQ (FSIQ) score differences between competent and incompetent defendants. Nestor, Daggett, Haycock, and Price (1999) and Otto and colleagues (1998) utilized the WAIS-R, while Grandjean (2004) incorporated the WASI. Competent defendants (M ! 86.8, SD ! 14.0) scored approximately six Full Scale IQ points higher than their incompetent counterparts (M ! 80.6, SD ! 14.1). The standardized mean difference (0.32, Median ! 0.42) can be classified as small to medium and is equal to an OR of 0.58. Four studies presented comparative Performance IQ (PIQ) data from the Wechsler scales; specifically, the WASI (Grandjean, 2004), the WAIS-R (Lesser, 1990; Nestor et al., 1999), and the WAIS-III (Shields, 2005). Competent defendants (M ! 84.9, SD ! 14.0) scored approximately five Performance IQ points greater than incompetent defendants (M ! 79.6, SD ! 13.4), which is also associated with a small to medium effect size statistic (standardized mean difference ! 0.38, Median ! 0.27) and is equivalent to an OR of 0.69. Seven studies investigated differences between competent and incompetent defendants on Wechsler verbal indices, which included Verbal IQ (VIQ) scores as well as those on a Verbal Cognitive Functioning (VCF) index. The VCF index was calculated in the three included MacArthur studies (i.e., Hoge et al., 1996, 1997a; Poythress et al., 1998) using the Vocabulary, Similarities, and Digit Span subtests of the WAIS-R. Five of the seven studies utilized the WAIS-R, while the WASI and WAIS-III were included by one study each. Comparable to the aforementioned FSIQ and PIQ findings, competent defendants (M ! 87.2, SD ! 13.5) scored approximately five IQ points higher than incompetent defendants (M ! 82.1, SD ! 12.3), which translates into a small to medium effect size (standardized mean difference ! 0.37, Median ! 0.36) and is equal to an OR of 0.67. The MMPI and/or the MMPI-2 have been included in 13 studies; however, the reported data is limited to validity and clinical scale scores. Furthermore, only two studies (i.e., Maxson & Neuringer, 1970; Sachsenmaier, 1991) have presented comparative data of competent and incompetent defendants on three scales for which effect sizes are calculable. Although it was not explicated in her dissertation, it seems Sachsenmaier (1991) reported scale raw scores; therefore, standardized mean difference statistics were computed in the present study’s analysis.

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24

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Table 6 Inclusion Status and Sample Sizes for Studies Using Traditional Instruments (n ! 46) Study Minnesota Multiphasic Personality Interview (MMPI/MMPI-2) Pfeiffer et al. (1967)a Cooke (1969)a Maxson & Neuringer (1970)a Cooke et al. (1974) Rogers et al. (1988)a Johnson et al. (1990)a Lesser (1990) Wildman et al. (1990)a Sachsenmaier (1991) Otto et al. (1998) Carbonell et al. (1992) Miller (2004) Wygant et al. (2007) Total Wechsler Abbreviated Test of Intelligence (WASI) Grandjean (2004) Wechsler Adult Intelligence Scale (WAIS) Pfeiffer et al. (1967)a Cooke (1969)a Heller et al. (1981, 1983)a Laczko et al. (1970)a Shatin (1979) Shatin & Brodsky (1979)a Smith & Broughton (1994) Smith & Hudson (1995) Smith (1996) Vernon et al. (1999) Total Wechsler Adult Intelligence ScaleRevised (WAIS-R) Johnson et al. (1990)a Lesser (1990) Sachsenmaier (1991) Hoge et al. (1996) Hoge et al. (1997a) Otto et al. (1998) Poythress et al. (1998) Nestor et al. (1999) Pierrel (1986) Gannon (1990) Carbonell et al. (1992)

Included (Yes/No)

Total, Incompetent, Competent, n n n

Y 89 Y 215 Y 594 Y 325 Y 459 Y 120 Y 136 Y 100 Y 445 Y 729 N 152 N 50 N 87 13 ! 10Y/3N 3,501

34 93 56 126 56 9 52 52 97 283 — 50 — 908(

55 122 538 199 403 111 83 48 348 446 — 0 — 2,353(

Y

48

30

18

Y Y Y Y Y

89 215 410 421 21

34 93 106 104 9

55 122 304 317 12

N N

160 55

— —

— —

N 8 ! 5Y/3N Y Y Y Y Y Y Y Y N N N

28 1,399 120 136 445 84 366 729 106 181 73 50 152

— 346(

— 810(

9 52 97 42 159 283 38 53 — 50 —

111 83 348 42 207 446 68 128 — 0 —

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COMPETENCY TO STAND TRIAL META-ANALYSIS

25

Table 6 (continued) Included Study (Yes/No) Everington & Dunn (1995) N Jones (1995) N Redding (1997) N Bertman (2000) N Bertman et al. (2003) Nicholson, Briggs, & Robertson (1988)a N Nicholson, Robertson, et al. (1988)a Nicholson & Johnson (1991) Anderson (1999) N Anderson & Hewitt (2002) Viljoen et al. (2002) N Viljoen & Zapf (2002) Everington et al. (2007) N Total 19 ! 8Y/11N Wechsler Adult Intelligence ScaleThird Edition (WAIS-III) Shileds (2005) Y Bertsch et al. (2002) N Ryba (2005) N Patterson (2005) N Peacock (2005) N Bennett (2006) N Everington et al. (2007) N Total 7 ! 1Y/6N Brief Psychiatric Rating Scale (BPRS) Y Johnson et al. (1990)a Hoge et al. (1996) Y Hoge et al. (1997a) Y Otto et al. (1998) Y Poythress et al. (1998) Y Zapf et al. (2001) Y Viljoen et al. (2003) Y Quinsey et al. (1975) N Roach (1994) N Redding (1997) N Bertman (2000) N Bertman et al. (2003) Ryba (2005) N Total 12 ! 7Y/5N a

Total, Incompetent, Competent, n n n 35 20 15 271 271 0 29 — — 26 26 0 132

11

121

75

75

0

212 160 95 3,316

— — — 1,186(

— — — 1,569(

218 20 77 617 68 60 95 1,155

35 10 37 617 9 60 — 768(

183 10 0 0 59 0 — 252(

9 42 159 283 38 10 13 24 30 — 26

111 42 207 446 68 90 83 0 42 — 0

120 84 366 729 106 100 96 56 72 29 26 77 1,861

37 671(

0 1,089(

Included in Nicholson & Kugler (1991).

Both Maxson and Neuringer (1970) and Sachsenmaier (1991) found incompetent defendants to produce higher scores across all three scales. The standardized mean difference effect sizes for the MMPI F scale, scale 6, and scale 8 were 0.33, 0.39, and 0.33, which are all considered small to medium. The associated OR statistics were 0.59, 0.71, and 0.59. Twelve studies utilized the BPRS in their design, four of which investigated the total score differences between competent and incompetent defendants and presented data from which an effect size could be generated. Each study found

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Table 7 Other Measures Used Across Studies (n ! 14) Study Pfeiffer et al. (1967) Heller et al. (1981, 1983) Simon (1987) Lesser (1990)

Wildman et al. (1990) Hoge et al. (1997a) Whittemore et al. (1997) Nussbaum et al. (1998) Matthews (1999) Nestor et al. (1999) Zapf et al. (2001) Grandjean (2004)

Jackson et al. (2005) Ryba (2005)

Measure(s) used Rorschach, Thematic Apperception Test (TAT), Bender Gestalt Western Personnel Test (IQ) Quick Test, Proverbs Test Bender Gestalt, Psychopathy Checklist (PCL), Schedule for Affective Disorders and Schizophrenia (SADS), Structured Clinical Interview for DSM-III (SCID), Michigan Alcoholism Screening Test (MAST) Peabody Picture Vocabulary Test Perceived Criminal Injustice Scale Test of Charter Comprehension (ToCC), Structured Clinical Interview for DSM-III –R – Patient Version (SCID-P) Wechsler Memory Scales (WMS), Rey Compley Figure Test, Trail Making Test, Controlled Oral Word Association Test FAS, Common Item Estimation Test Scale to Assess Unawareness of Mental Disorder (SUMD), Positive and Negative Syndrome Scale (PANNS), Test of Nonverbal Intelligence-2 (TONI-2) Wecshler Memory Scale-Revised (WMS-R), Trail Making Test, Wisconsin Card Sort Test (WCST), Wide Range Achievement Test-Revised (WRAT-R) Structured Clinical Interview for DSM-III –R – Patient Version (SCID-P) Wecshler Memory Scale (WMS), Controlled Oral Word Association Test, Stroop Color and Word Test, Continuous Performance Test, Coglab, Wisconsin Card Sort Test (WCST), Social Knowledge Questionnaire, Insight scale for Psychosis, Rey 15item Memory Test Miller Forensic Assessment of Symptoms Test (MFAST) Brief Test of Attention, Trail Making Test

higher BPRS total scores for incompetent defendants compared to competent defendants, which relates to more severe psychiatric symptomatology. The overall discrepancy was 7.4 points (Median ! 4.9), such that incompetent defendants scored approximately 40 (M ! 39.6, SD ! 9.2), whereas competent defendants’ mean BPRS total score was 32.0 (SD ! 7.9). Comparison With Nicholson and Kugler (1991) The conduct and writing of meta-analyses have become more sophisticated and standardized in practice than they were in the late 1980s when Nicholson and Kugler conducted their study. Nevertheless, it is important to compare and contrast their study with the present meta-analysis in terms of both study design and results.

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Inclusion Criteria The main inclusion criteria for both the present and previous meta-analysis are identical; namely, included studies must have compared competent and incompetent groups on at least one variable such that an effect size could be calculated. Despite this similarity, five studies used by Nicholson and Kugler (1991) were not included in the present meta-analysis because they were deemed to not meet inclusion criteria (see Appendix B). Furthermore, some data analyzed by Nicholson and Kugler was deemed unsuitable for coding in the present meta-analysis.8 Calculation and Analysis of Effect Sizes Nicholson and Kugler (1991) calculated Pearson correlation coefficients as measures of effect size in their meta-analysis, which is the same method Nicholson (1986) used in his meta-analysis investigating the correlates of civil commitment published 5 years earlier. Phi coefficients (*) were generated for 2 $ 2 categorical analyses (e.g., the relationship between competency status and sex) and point-biserial correlations were calculated to investigate the relationship between categorical and continuous variables (e.g., competency status and years of education). Utilizing correlation coefficients, especially the phi coefficient, presents major limitations for use with these data. Not only do phi coefficients underestimate the population correlation coefficient (Sanchez-Meca et al., 2003), they can wildly vacillate as a function of marginal proportions and/or sample sizes alone, whereas ORs cannot (Kline, 2004). The use of correlation coefficients is particularly problematic for competency data because of the base-rate of incompetency, which is &20 –30%. As Lipsey and Wilson (2001) articulated: 8

The validation study of the Competency Screening Test (CST) conducted by Lipsitt and colleagues (1971), which was included in both meta-analyses, illustrates the point that initial inclusion of a study does not equal inclusion of all of its presented data. Lipsitt and colleagues incorporated six samples in their study: (a) defendants referred to Bridgewater State Hospital for a competency evaluation (n ! 43); (2) defendants for whom no question of competency was posed (n ! 11); (3) patients civilly committed to Bridgewater State Hospital (n ! 47); (4) patients civilly committed to Boston State Hospital (n ! 19); (5) college undergraduates (n ! 13); and, (6) a men’s breakfast club associated with a church (n ! 28). The authors presented the CST means and standard deviations for each of the six aforementioned groups; however, note that none of these groups represented an incompetent group, and therefore, relevant effect sizes cannot be calculated in a comparative meta-analysis. Lipsitt and colleagues subsequently divided the group of 43 referred defendants (i.e., Bridgewater experimental group) into two groups based on their CST scores: Low (n ! 23) and High (n ! 20). The CST ranges from 0 to 44, such that higher scores relate to competency and lower scores are associated with incompetency. Lipsitt and colleagues classified a score of 21 or higher as “High”; however, this cutoff score was not derived empirically, but rather because the “research staff found that a qualitative difference in responses appeared at about a score of 20” (p. 106). Furthermore, only sample sizes (not scores) were presented for the bifurcated referred group. To summarize, the validation study of the CST conducted by Lipsitt and colleagues provides no comparative CST data. The CST means and standard deviations initially presented are those of five purely competent groups and one group referred for competency evaluations, which are inappropriate comparisons for this study; and, although the referred defendants were subsequently divided into competent and incompetent groups, CST data was not reported.

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. . . the maximum possible phi value for a 2 $ 2 table with a 90 –10 split on one variable and 50 –50 split on the other is .33; considerably less than 1. For an 80 –20 split the maximum only climbs to .5. The odds-ratio, on the other hand, is insensitive to changes in the marginal proportions, that is, the proportion split for each dichotomy, and is therefore well suited to represent low frequency events. (pp. 60 – 61)

In addition to being statistically problematic, use of correlation coefficients to handle 2 $ 2 analyses can be conceptually confusing. A correlation coefficient is a measure of association, however, and it cannot directly speak to actual levels of likelihood. Nicholson and Kugler (1991) attempted to circumvent the problems associated phi coefficients by subsequently calculating Cohen’s h statistics. Nevertheless, this statistic remains problematic because it is a member of the d family and, therefore, represents the difference between two proportions rather than a measure of likelihood (Rosenthal, 1994). Using correlation coefficients as measures of effect size to investigate the relationship between competency status and continuous outcome data is also problematic because point-biserial correlation coefficients are subject to the same range restriction problems previously outlined for categorical data (Lipsey & Wilson, 2001) and they are also conceptually limiting for these data. As such, effect size data in the form of difference-statistics is more consistent with the aims of a comparative study. Furthermore, while correlation coefficients are easily interpretable and likely more familiar to most researchers and practitioners, they are actually more convoluted and abstract than difference-statistics for these data. Results The present study consisted of data from 88 total manuscripts, 68 of which represent independent studies, including 11 dissertations, published between 1967 and 2007. Nicholson and Kugler’s meta-analysis was based on 27 independent studies published between 1967 and 1989. The mean total sample size found in the present study neared 400 (i.e., M ! 384.5) with a median size of 176, whereas the previous study found a mean total sample size of 272.3. The base rate of incompetency found in the present meta-analysis was 27.5% as compared to Nicholson and Kugler’s finding of 30.6%. It is not possible to compare the meta-analyses with respect to the descriptive statistics of incompetent and competent subsamples because Nicholson and Kugler only presented such data for total samples rather than bifurcating the incompetent and competent sample data. The reporting of total sample size statistics is not applicable in the context of comparative competency research because such data is reflective of the characteristics of referred defendants rather than that of incompetent and competent defendants. For example, presenting the percent of a total sample of defendants diagnosed with a Psychotic Disorder is misleading without associated subsample statistics. In the present study, 44.4% of the total sample was diagnosed with a Psychotic Disorder; however, when divided, the groups were starkly different. Specifically, 66.5% of incompetent defendants carried such a diagnosis as compared to only 22.2% of their competent counterparts. The interested reader can compare and contrast the descriptive findings from both meta-analyses by refer-

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encing Table 3 of the present study and Table 1 of Nicholson and Kugler’s meta-analysis. Nicholson and Kugler found that 86.7% of studies utilized mental health professional decisions as the ultimate competency criterion compared to 77.9% found in the present study. Approximately three-quarters (73.3%) of their studies were conducted in inpatient settings; in the present meta-analysis, 67.6% of studies were conducted inpatient-only and 16.2% were conducted in a combination of inpatient and outpatient settings. Both meta-analyses investigated the relationship between defendants’ background characteristics and competency status, as well as the association between performance on traditional and competency assessment instruments and competency status. Nicholson and Kugler coded for six demographic variables (i.e., age, gender, race, marital resources, education, and employment status). These variables were all included in the present study, although effect sizes were not calculated for age or education level because 2 $ 2 tables were used in the present study to generate ORs. Nicholson and Kugler found statistically significant, yet small relations between findings of incompetency and three of the four remaining demographic variables: female gender (n ! 12, r ! .09), minority race (n ! 12, r ! .09), and marital status/married (n ! 5, r ! '.08). A negative, but nonsignificant, association was found between being found incompetent and being employed (n ! 4, r ! '.06). Relatively consistent results were found in the present study. The ORs (i.e., the odds of being found incompetent if “x”) for each of the aforementioned variables neared neutral in the present meta-analysis with the exception of employment status: Female (n ! 18, OR ! 1.12), Non-White (n ! 22, OR ! 1.39), Not Married (n ! 10, OR ! 1.43), and Unemployed (n ! 8, OR ! 2.07). Nicholson and Kugler coded for three variables related to legal and psychiatric history (i.e., type of offense, previous legal involvement, previous hospitalization). The correlation between a finding of incompetency and nonviolent offense was virtually nonexistent across 12 studies (r ! .01), whereas the relationship between incompetency and having no previous legal involvement (n ! 4, r ! .17) and having a previous psychiatric hospitalization (n ! 5, r ! .26) were significant, yet small. Once again, interpretation of the present study’s findings are similar, such that the odds of being found incompetent if currently charged with a violent crime was approximately neutral (OR ! 1.3) across 18 studies, and those with a psychiatric hospitalization history (OR ! 1.86) were nearly twice as likely to be found incompetent than those without such history. Nicholson and Kugler also coded for a number of “psychiatric characteristics,” including diagnoses of Mental Retardation and Psychosis, as well as eight types of psychiatric symptoms (e.g., disorientation). Diagnosis of Mental Retardation and the eight psychiatric symptom categories were also coded in the present study; however, effect sizes were only calculated for diagnosis of a Psychotic Disorder (yes/no). As was the case in Nicholson and Kugler (1991), the effect size associated with a psychotic diagnosis was the highest in the present meta-analysis. Nicholson and Kugler found the association with psychosis and incompetency to be relatively large (r ! .45) across 17 studies and, in the present study, those diagnosed with a Psychotic Disorder were nearly eight times more likely to be found incompetent than those without the diagnosis (n ! 25).

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With respect to psychological test performance, Nicholson and Kugler examined the relationship between scores on four competency assessment instruments and competency status. Moderately sized, negative correlations were found for each measure, such that poor performance was related to incompetency. Effect sizes for the Competency Screening Test (CST) were derived from data from 11 studies (r ! '.37), four studies for the Georgia Court Competency Test (CGGT; r ! '.42), two studies for the Competency Assessment Instrument (CAI; r ! '.52), and one study for the Interdisciplinary Fitness Interview (IFI; r ! '42). The data utilized by Nicholson and Kugler to calculate the aforementioned correlations are unknown. Neither the first author nor the second-coder of the present study was able to replicate Nicholson and Kugler’s findings while maintaining the parameters of the inclusion criteria; therefore, meaningful comparisons between the findings of the present and previous meta-analyses are not possible. In the present study, sufficient data were only available for five competency instruments (i.e., CST, GCCT-MSH, FIT, MFQ, MFCS), and only the CST and GCCT-MSH had such data from more than one independent study. Competent defendants scored approximately 10 points higher than incompetent defendants on the CST across two studies. Four studies utilized the GCCT-MSH and found competent defendants to score almost 26 points higher than incompetent defendants on average. The FIT, MFQ, and MFCS were used in one included study each and, when data on these measures was combined with data on the CST and GCCT-MSH, the standardized cumulative effect size was relatively large (d ! 1.4). Nicholson and Kugler also investigated defendants’ performance on IQ9 and four MMPI scales. The authors reported a small, negative relationship between findings of incompetency and intelligence test scores (r ! '16) across eight studies. In the present study, standardized mean difference statistics were calculated to represent the relationship between competency status and Wechsler FSIQ, PIQ, and VIQ/VCF indices. Competent defendants scored approximately 5 to 6 points greater than their incompetent counterparts across all three indices, and all three effect sizes were small to medium, ranging from 0.32-0.38. Nicholson and Kugler found small, yet significant correlations representing the association between incompetency and four MMPI scales across five studies; specifically, positive relationships were found for the F scale (r ! .08), and scales 5 (r ! .05), 6 (r ! .08), and 8 (r ! .08). Effect sizes for the F scale and scales 6 and 8 were calculated in the present meta-analysis. Incompetent defendants evidenced higher scores on average than competent defendants, and small to medium standardized effect sizes were found for each scale (i.e., 0.33, 0.39, and 0.33). Discussion The main objective of the present study was to quantitatively synthesize the comparative research on competent and incompetent defendants via contemporary meta-analytic methods and statistical procedures; namely, to address specific research questions, including determining which variables are related to a defen9

Nicholson and Kugler (1991) presented effect sizes related to “IQ score,” but the intelligence measure(s) used in the calculations were not mentioned.

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dant’s competency status as well as the utility of various traditional and competency assessment measures in differentiating between competent and incompetent defendants. Researchers have investigated the relationship between competency status and demographic, psycholegal, criminological, and clinical variables consistently since the 1960s. Eight of the most commonly researched variables were investigated in the present meta-analysis: ethnicity; sex; marital status; employment status; psychiatric diagnosis; psychiatric hospitalization history; competency evaluation history; and current criminal charge, most of which do not have a compelling association with findings of incompetency. In fact, only two of the eight variables (i.e., employment and psychiatric diagnosis) evidenced ORs above 2.0, such that unemployed defendants were approximately twice as likely to be found incompetent than those who are employed, and those diagnosed with a Psychotic Disorder were approximately eight times more likely to be found incompetent than those without a psychotic diagnosis. Two of the six other variables, sex and competency evaluation history, produced neutral ORs (i.e., no difference in levels of likelihood), but the confidence interval surrounding the effect size for competency evaluation history is quite large and, therefore, to suggest a neutral relationship between that variable and competency status would be inappropriate. Only three studies were included in the analysis of competency evaluation history and their ORs differed tremendously: 0.23 (Hoge et al., 1997a); 0.40 (Reich & Wells, 1985), and 13.56 (Rosenfeld & Ritchie, 1998). The confidence intervals surrounding the ORs of the four remaining variables (i.e., ethnicity, marital status, psychiatric hospitalization history, current criminal charge) all included a neutral OR (i.e., 1.0). These data, coupled with the fail-safe N statistics associated with each OR, provide modest support for the relationship between competency status and most of these variables; however, this interpretation is made cautiously in light of the relatively few studies included in some of these analyses (e.g., psychiatric hospitalization and competency evaluation history analyses included five and three studies, respectively). An additional issue to consider is that ORs were calculated for variables independently in the present study despite their actual interdependence; therefore, conditional, or joint, probabilities were not estimated. In other words, what is the associated likelihood of being found incompetent to stand trial for an unemployed, minority female who has never been married and who has been diagnosed with Schizophrenia? Unfortunately, this type of question cannot actually be answered with any scientific certainty in the present study because it would have required that primary research data be presented in a factorial manner with numerous variable combinations resulting in many cells. For example, 256 possible defendant characteristic combinations would exist if a researcher were to collect data dichotomously (i.e., yes/no) for the eight categorical variables included in the present study (i.e., 2 $ 2 $ 2 $ 2 $ 2 $ 2 $ 2 $ 2). Such data collection would obviously be overwhelming and lead to useless information; however, important information may be gained in the future if some variable combinations were investigated; specifically, it would be useful to first investigate the combination of a Psychotic Disorder diagnosis, unemployment, and a psychiatric hospitalization history, as the largest effect sizes found in

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this study were associated with these variables. An essential aspect of such an analysis would be to investigate the level of multicollinearity among these variables because of their close association to one another. Perhaps a more efficient and useful method would be to conduct sequential or hierarchical logistic regressions that examine the incremental validity of the aforementioned and other legally relevant variables. Researchers and commentators have also investigated the use of traditional and competency assessment instruments in the competency context since the 1960s and, while effect sizes corresponding to the relationship between competency status and scores on competency measures were found to be larger than those pertaining to scores on traditional measures by the present and the previous meta-analysts, comparative data related to defendants’ performance on these measures remains scant. It was initially surprising that data from so few studies was available for effect size analyses pertaining to traditional and competency assessment instruments in light of the numerous publications in this area over the past 50 years; however, studies are likely to be more heavily scrutinized by meta-analysts than they are by those authoring books/chapters, journal articles, and qualitative reviews. Even when authors of such publications are scrupulous, they usually do not use formal inclusion criteria for studies incorporated in their literature review. In addition, limitations and relevant interpretive caveats are usually only briefly mentioned and may be overshadowed by a paper’s main points (e.g., significant findings). There is no way to know how many times traditional and competency assessment instruments have actually been incorporated into research studies but not reported or how much associate unpublished data exists. Nevertheless, empirical knowledge is based on available research and, as such, there is insufficient empirical evidence to support the complete superiority of competency assessment instruments over traditional measures at this time. Nonetheless, insufficient empirical evidence is not equivalent to a lack of empirical evidence, and the conclusions drawn from the present meta-analysis should not be interpreted to mean traditional measures have utility comparable to competency measures for use in competency evaluations. Competency assessment instruments, as a class of forensic assessment instruments, have been developed to address specific psycholegal questions related to the psycholegal construct of adjudicative competency; therefore, they are conceptually appropriate for use in competency evaluations. Still, the debate on the use of forensic versus traditional assessment instruments is an oversimplified characterization of the often-complicated decisions associated with choosing appropriate assessment measures for evaluations. Substantially larger effect sizes have been found for the relationship between competency status and competency measures than for the association between competency status and traditional measures; however, these findings do not negate the fact that traditional assessment instruments can be useful in competency evaluations for specific reasons, although Nicholson and Kugler (1991) suggested otherwise: Defendants with lower IQ scores and defendants with higher scores on Scales F, 5, 6, and 8 of the MMPI were more often judged incompetent. However, these correlations were small at best (all rs ! .08), confuting the argument that

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instruments such as the MMPI can be used for screening purposes in competency evaluation. (cf. Maxson & Neuringer, 1970, p. 363)

The reality is the MMPI and MMPI-2 are very robust measures encompassing hundreds of scales that may never be fully explored in the adjudicative competency arena. Comparative research on the nine validity scales and 10 additional primary clinical scales is needed before definitive recommendations regarding its utility for use in competency evaluations can be proffered. It is far-reaching to dismiss the potential utility of the MMPI/MMPI-2 in competency evaluations based on data from five studies on four of its scales. Personality measures can be useful in establishing the existence of a mental illness (a threshold issue) or evaluating malingering. The MMPI-2, for example, is constantly evolving and is comprised of a multitude of scales and subscales, which may have utility in this regard. Nevertheless, when measures are used inappropriately, they can be useless or misleading. Thus, the question should not be if traditional measures should be used in competency evaluations but rather, when and how. Unfortunately, edited books devoted to the use of traditional measures in forensic evaluations provide virtually no guidance in this regard. Archer’s (2006) book on the forensic uses of clinical assessment instruments includes whole chapters on the MMPI-2, PAI, MCMI-III, PCL-R, and Rorschach; however, the use of these measures in competency evaluations is only addressed in two places: one paragraph in the MMPI-2 chapter authored by Sellbom and Ben-Porath and three paragraphs on the Rorschach in Weiner’s chapter. Gacono, Evans, Kaser-Boyd, and Gacono’s (2008) recently edited a handbook on forensic Rorschach assessment, which contains a full chapter on its use in trial competency evaluations written by Gray and Acklin. Although the authors presented cogent arguments for using the Rorschach in competency evaluations, they offered no empirical support for its utility in such evaluations, likely because none exists. There are currently no published studies available that present Rorschach data from incompetent and competent defendant samples and only two studies even mention the incorporation of the Rorschach in their designs (i.e., Laboratory of Community Psychiatry, 1974; Pfeiffer, Einstein, & Dabbs, 1967). It is noteworthy that only one study mentioned the use of the Thematic Apperception Test (TAT) and Draw-a-Person Test with incompetent/competent samples, but no data were presented (i.e., Vernon, Steinberg, & Montoya, 1999). Nicholson and Kugler (1991) found a small effect size (r ! '.16) to represent the relationship between IQ score and competency status; however, they did not provide an explanation nor interpretation of this finding. As a result, it can easily be taken out of context and misinterpreted, thereby supporting a notion that traditional measures are not useful in the assessment of adjudicative competency. All of the studies included in the present and previous meta-analysis have presented data on three main indices of intellectual functioning: Full Scale IQ, Verbal IQ or VCF, and Performance IQ. It is noteworthy that the VIQ and PIQ indices are no longer calculated by the new Wechsler adult intelligence measure (WAIS-IV). In addition, Full Scale IQ score in and of itself provides insufficient information to the competency evaluator, particularly without knowing whether it should be interpreted in the first place (i.e., the presence of a significant difference split in scores between verbal and performance indices). The findings of the

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present and past meta-analysis should not be interpreted as evidence against the use of traditional measures in competency evaluations. In fact, the assessment of cognitive functioning is quite important. Zapf (1999) argued, “what makes an individual competent is . . . cognitive organization” (p. 78), which she operationalized as an ability to understand, process, and express or communicate information. Zapf further argued that cognitive organization was necessary, but not sufficient, for trial competency and suggested defendants must not possess any context-specific impairment, or thought processes not based in reality, specific to the context in which the question of competency has arisen, such as a delusional belief regarding the forthcoming criminal procedures. These abilities comprise the legal standard of competence a` la Dusky; as such, evaluating cognitive abilities is an essential component of the functional assessment of a defendant’s competency (Grisso, 2003; Zapf, 2009) or, as Skeem and Golding (1998) articulated, “Thus, the fundamental task for a forensic examiner is to relate any psychopathological or cognitive difficulties to possible impairments in the defendant’s psycholegal abilities” (p. 358). Research on the cognitive/neuropsychological assessment of competent and incompetent samples has increased in recent years. Nussbaum and colleagues (1998) administered a cognitive battery in addition to the METFORS Fitness Questionnaire and concluded, “Empirically we have provided initial evidence that the legal fitness concept appears grounded within a cognitive psychological foundation” (p. 59). Nestor and colleagues (1999) administered a comprehensive neuropsychological battery to a sample of 181 patients committed to Bridgewater State Hospital who had undergone competency evaluations between 1987 and 1995. They found the greatest differences between competent and incompetent defendants on tests of memory, particularly verbal memory, “which assess the ability to acquire, encode, retain, and retrieve new verbal information” (p. 407), but found no differences on standardized tests of academic skills. Grandjean (2004) found competent defendants differed from incompetent defendants in four cognitive domains (i.e., verbal memory, verbal comprehension, social judgment, and executive functioning), but not on measures of visual memory, visual spatial skills, or attention. The significance of cognitive abilities in the competency context is further appreciable by the very existence of the literature pertaining to juvenile defendants and those diagnosed with Mental Retardation, wherein such abilities are directly implicated. In summary, larger effect sizes corresponding to the relationship between competency status and competency assessment instruments have been found as compared to those associated with traditional measures; however, the data from which these effect sizes have been calculated are limited for a number of reasons and additional research on both classes of measures is needed before empirically supported conclusions can be made. Still, some evidence exists for the ability of certain measures and scales to reliably differentiate between competent and incompetent defendants. Competency assessment instruments are useful because they address competence-related abilities directly per the relevant legal standard (i.e., Dusky), but evaluators must be mindful when choosing which measure to use because of variability in their utility (see Grisso, 2003; Melton et al., 2007; Zapf & Viljoen, 2003). Traditional assessment instruments can be useful in competency evaluations; however, research and commentary to date has not adequately

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addressed when and how they may be used most effectively. Additional research incorporating these measures is needed, particularly those designed to assess cognitive functioning. Limitations The present study provides the field with a timely quantitative review of the competency to stand trial research; however, limitations remain. The first limitation is related to moderation analysis. Moderation was formally investigated in the present meta-analysis (via meta F-tests and meta-regression models), but these analyses were considerably constrained because of the lack of variability within moderator groups across studies. Although this is a limitation of the primary data rather than the present meta-analysis, it is noteworthy in this context. Second, data from some groups was combined for the purposes of comparative analysis (i.e., incompetent versus competent defendants). When applicable, questionably fit groups’ data was combined with that of unfit groups, and data from groups whose competency was never in question (e.g., inmates) was combined with that of competent defendant groups.10 Combining data in this way is not unprecedented (see, e.g., Robertson et al., 1997; Rogers et al., 1998), but it is a method in need of further attention because, for certain variables, questionably fit groups have been found to be more similar to fit groups than to those who were unfit (e.g., McDonald, Nussbaum, & Bagby, 1991) and competent inmates receiving mental health treatment have been found to be more comparable to incompetent defendants than mentally healthy inmates (e.g., Hoge et al., 1997a; Otto et al., 1998; Poythress et al., 1998). Last, some studies included defendants who have had a previous competency evaluation (e.g., Reich & Wells, 1985; Robertson et al., 1997), while others excluded such defendants (e.g., Bluestone & Melella, 1978), and aggregating data from these studies may have had an impact on a portion of the findings. Specifically, the relationship between having undergone a previous competency evaluation and the defendant’s present competency status may be spurious in nature. For instance, in one of the few studies wherein the issue of multiple competency evaluations was investigated, Reich and Wells (1986a) compared those with previous evaluations, or “repeaters,” to those who had not been previously evaluated and they found repeaters were more likely to be diagnosed with Schizophrenia and Affective Disorders, were less educated, and were found competent less often than their nonrepeater counterparts. In addition to potential within-group discrepancies among incompetent defendants, researchers who include repeaters are forced to make an arbitrary decision as to which evaluation to include in their data set. For example, Robertson and colleagues (1997) included data from the initial assessment of two participants with multiple evaluations during their data collection period, but they automatically excluded the initial evaluation data of two other participants that was gathered before the data collection period. 10 Averaging group means is statistically correct, but doing so with standard deviations is not; therefore, a pooled standard deviation statistic was calculated to represent the “average” of two or more standard deviations.

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Conclusion The present study was a synthesis of approximately 50 years of comparative competency research and represents the current state of knowledge with respect to differences between incompetent and competent defendants on various demographic, psycholegal, criminological, and clinical variables. The major findings of this meta-analysis are that defendants diagnosed with a Psychotic Disorder, those who are unemployed, and those with a psychiatric hospitalization history are most likely to be found incompetent to stand trial. In addition, there is a significantly greater discrepancy in scores between competent and incompetent defendants on competency assessment instruments as compared to traditional psychological measures; however, this finding is based on limited data. Although these findings have been incorporated into competency practice recommendations and standards over the years, many questions remain. Perhaps the greatest strength of this meta-analysis is its stimulation of such questions and the discontinuation of others, which will hopefully inspire novel research and commentary in this area. There is room for improvement and growth in all areas of study and the competency arena is no different; however, that reality should not overshadow the significant advancements in this field since the 1960s. The quality of a metaanalysis is, in part, dependent on the quality of the primary research literature, which is largely reliant on our ability to learn from and improve upon earlier studies. Sustained developments in the adjudicative competency arena are also largely dependent on the continued commitment of authors to conceptualize their work as part of a field of research rather than as isolated investigations (e.g., consideration of if and how their data could be coded by future meta-analysts)- an integral step toward bridging gaps between research, practice, and policy. References References marked with an asterisk indicate studies included in the meta-analysis.

Ackerman, M. J. (1999). Essentials of forensic psychological assessment. New York: John Wiley & Sons, Inc. Altman, D. G. (1991). Practical statistics for medical research. London: Chapman and Hall. Archer, R. P. (2006). Forensic uses of clinical assessment instruments. Mahwah, NJ: Lawrence Erlbaum. Archer, R. P., Buffington-Vollum, J. K., Stredny, R. V., & Handel, R. W. (2006). A survey of psychological test use patterns among forensic psychologists. Journal of Personality Assessment, 87, 84 –94. doi:10.1207/s15327752jpa8701_07 *Barnard, G. W., Thompson, J. W., Freeman, W. C., & Robbins, L. (1991). Competency to stand trial: Description and initial evaluation of a new computer-assisted assessment tool (CADCOMP). Bulletin of the American Academy of Psychiatry & the Law, 19(4), 367–381. Blackstone, W. (1783). Commentaries on the laws of England (9th ed.). London: W. Strahan. *Bluestone, H., & Mellela, J. (1978). A study of criminal defendants referred for competency to stand trial in New York City. Bulletin of the American Academy of Psychiatry & the Law, 7(2), 166 –178. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. doi:10.1002/bsl.2370100303

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Bonnie, R. J. (1993). The competence of criminal defendants: Beyond Dusky and Drope. University of Miami Law Review, 47, 539 – 601. Bonnie, R. J., & Grisso, T. (2000). Adjudicative competence and youthful offenders. In T. Grisso & R. G. Schwartz, (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 73–103). Chicago, IL: University of Chicago Press. Borenstein, M. (2009). Effect sizes for continuous data. In H. Cooper & L. V. Hedges (Eds.), The handbook of research synthesis (2nd ed., pp. 221–235). New York: Russell Sage. Borenstein, M., Hedges, L., Higgins, J., & Rothstein, H. (2005). Comprehensive Metaanalysis Version 2. Englewood, NJ: Biostat. Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evaluations. Professional Psychology: Research and Practice, 26, 465– 473. doi:10.1037/07357028.26.5.465 Cohen, J. (1977). Statistical power analysis for the behavioral sciences (Rev. ed.). New York: Academic Press. Cohen, J. (1988). Statistical power analysis for the behavioral sciences (2nd ed.). Hillsdale, NJ: Erlbaum. Colwell, K., Colwell, L. H., Perry, A. T., Wasieleski, D., & Billings, T. (2008). The Test of Malingered Incompetence (TOMI): A forced-choice instrument for assessing cognitive malingering in competence to stand trial evaluations. American Journal of Forensic Psychology, 26(3), 17– 42. Cooper, D., & Grisso, T. (1997). Five year research update (1991–1995): Evaluations for competence to stand trial. Behavioral Sciences and the Law, 15, 167–180. doi:10.1002/(SICI)1099-0798(199722/06)15:3"347::AID-BSL270%3.0.CO;2-K Cooper, H., & Hedges, L. V. (1994). Potentials and limitations of research synthesis. In H. Cooper & L. V. Hedges (Eds). The handbook of research synthesis (pp. 521–529). New York: Russell Sage Foundation. Crocker, A. G., Favreau, O. E., & Caulet, M. (2002). Gender and fitness to stand trial: A 5-year review of remands in Que´bec. International Journal of Law and Psychiatry, 25, 67– 84. doi:10.1016/S0160-2527(01)00089-9 Drope v. Missouri, 420 U.S. 162 (1975). Dusky v. United States, 362 U.S. 402 (1960). Everington, C., & Luckasson, R. (1992). Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). Worthington, OH: IDS Publishing. Favole, R. J. (1983). Mental disability in the American criminal process: A four issue survey. In J. Monahan & H. J. Steadman (Eds.), Mentally disordered offenders: Perspectives from law and social science (pp. 247–295). New York: Plenum. Fleiss, J. L. (1981). Statistical methods for rates and proportions (2nd ed.). New York: Wiley. Fleiss, J. L., Levin, B. A., & Paik, M. C. (2003). Statistical methods for rates and proportions (3rd ed.). New York: John Wiley and Sons. Frith’s Case, 22 How. St. Tr. 307 (1790). Gacono, C. B., Evans, F. B., Kaser-Boyd, N., & Gacono, L. A. (2008). The handbook of forensic Rorschach assessment. New York: Routledge/Taylor & Francis. Golding, S. L. (1993). Interdisciplinary Fitness Interview - Revised (Training Manual and Interview Procedure). Unpublished monograph, State of Utah Division of Mental Health. Goldstein, A. M. (2003). Handbook of psychology: Forensic psychology (Vol. 11). Hoboken, NJ: John Wiley & Sons, Inc. Goldstein, A. M. (2007). Forensic psychology: Toward a standard of care. In A. M. Goldstein (Ed.), Forensic psychology: Emerging topics and expanding roles (pp. 3– 41). Hoboken, NJ: John Wiley & Sons, Inc.

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*Grandjean, N. R. (2004). Neuropsychological predictors of incompetency to stand trial in defendants referred for competency restoration. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2006-99002-240) Grisso, T. (1986). Evaluating competencies: Forensic assessments and instruments. New York: Kluwer Academic/Plenum Publishers. Grisso, T. (1992). Five-year research update (1986 –1990): Evaluations for competence to stand trial. Behavioral Sciences and the Law, 10, 353–369. doi:10.1002/ bsl.2370100306 Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum Publishers. Haddock, C. K., Rindskopf, D., & Shadish, W. R. (1998). Using odds ratios as effect sizes for meta-analysis of dichotomous data: A primer on methods and issues. Psychological Methods, 3, 339 –353. doi:10.1037/1082-989X.3.3.339 Hedges, L. V., & Olkin, I. (1985). Statistical methods for meta-analysis. New York: Academic Press. Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Kluwer Academic/Plenum Publishers. Heilbrun, K., Marczyk, G. R., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York: Oxford University Press. *Hoge, S. K., Bonnie, R. J., Poythress, N., Monahan, J., Eisenberg, M., & Feucht-Haviar, T. (1997a). The MacArthur adjudicative competence study: Development and validation of a research instrument. Law and Human Behavior, 21, 141–179. doi: 10.1023/A:1024826312495 *Hoge, S. K., Poythress, N., Bonnie, R., Eisenberg, M., Monahan, J., Feucht-Haviar, T., & Oberlander, L. (1996). Mentally ill and non-mentally ill defendants’ abilities to understand information relevant to adjudication: A preliminary study. Bulletin of the American Academy of Psychiatry & the Law, 24(2), 187–197. Kline, R. B. (2004). Beyond significance testing: Reforming data Analysis methods in behavioral research. Washington, DC: American Psychological Association. Laboratory of Community Psychiatry, Harvard Medical School. (1974). Competency to stand trial and mental illness. New York: Jason Aronson, Inc. Landis, J., & Koch, G. (1977). The measurement of observer agreement for categorical data. Biometrics, 33, 159 –174. Retrieved from http://jstor.org/stable/2529310 *Lesser, F. I. (1990). Formulating a prediction model for regaining competency to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1991–51161-001) Lipsey, M. W., & Wilson, D. B. (2001). Practical meta-analysis. Applied Social Research Methods Series (Vol. 49). Thousand Oaks, CA: SAGE Publications. *Lipsitt, P. D., Lelos., D., & McGarry, A. L. (1971). Competency for trial: A screening instrument. American Journal of Psychiatry, 128(1), 105–109. *Maxson, L. S., & Neuringer, C. (1970). Evaluating legal competency. Journal of Genetic Psychology, 117(2), 267–273. *McDonald, D. A., Nussbaum, D. S., & Bagby, R. M. (1991). Reliability, validity and utility of the Fitness Interview Test. Canadian Journal of Psychiatry, 36(7), 480 – 484. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed). New York: Guilford Press. Melton, G. B., Petrila, J., Poythress, N. G., Slobogin, C., Lyons, P. M., Jr., & Otto, R. K. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford Press. Mosley, D., Thyer, B. A., & Larrison, C. (2001). Development and preliminary validation

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of the Mosley Forensic Competency Scale. Journal of Human Behavior in the Social Environment, 4, 41– 48. doi:10.1300/J137v04n01_03 Mumley, D. L., Tillbrook, C. E., & Grisso, T. (2003). Five year research update (1996 –2000): Evaluations for competence to stand trial (adjudicative competence). Behavioral Sciences and the Law, 21, 329 –350. doi:10.1002/bsl.534 Murrie, D. C., Boccaccini, M., Zapf, P. A., Warren, J. I., & Henderson, C. E. (2008). Clinician variation in findings of competence to stand trial. Psychology, Public Policy, & Law, 14, 177–193. doi:10.1037/a0013578 Musick, J. E., & Otto, R. K. (2010). Inventory of Legal Knowledge (ILK). Lutz, FL: Psychological Assessment Resources. *Nestor, P. G., Daggett, D., Haycock, J., & Price, M. (1999). Competence to stand trial: A neuropsychological inquiry. Law and Human Behavior, 23, 397– 412. doi:10.1023/ A:1022339130582 Nicholson, R. A. (1986). Correlates of commitment status in psychiatric patients. Psychological Bulletin, 100, 241–250. doi:10.1037/0033-2909.100.2.241 *Nicholson, R. A. (1988). Validation of a brief form of the Competency Screening Test. Journal of Clinical Psychology, 44(1), 87–90. *Nicholson, R. A., Briggs, S. R., & Robertson, H. C. (1988). Instruments for assessing competency to stand trial: How do they work? Professional Psychology: Research and Practice, 19, 383–394. doi:10.1037/0735-7028.19.4.383 Nicholson, R. A., & Kugler, K. (1991). Competent and incompetent criminal defendants: A quantitative review of comparative research. Psychological Bulletin, 109, 355–370. doi:10.1037/0033-2909.109.3.355 Nicholson, R. A., & Norwood, S. (2000). The quality of forensic psychological assessments, reports, and testimony: Acknowledging the gap between promise and practice. Law and Human Behavior, 24, 9 – 44. doi:10.1023/A:1005422702678 *Nussbaum, D., Mamak, M., Tremblay, H., Wright, P., & Callaghan, J. (1998). The METFORS Fitness Questionnaire (MFQ): A self-report measure for screening competency to stand trial. American Journal of Forensic Psychology, 16(3), 41– 65. *Otto, R. K., Poythress, N. G., Nicholson, R. A., Edens, J. F., Monahan, J., Bonnie, R. J., Hoge, S. K., & Eisenberg, M. (1998). Psychometric properties of the MacArthur Competence Assessment Tool-Criminal Adjudication. Psychological Assessment, 10, 435– 443. doi:10.1037/1040-3590.10.4.435 *Pfeiffer, E., Einstein, R. B., & Dabbs, E. G. (1967). Mental competency evaluation for the federal courts: I. Methods and results. Journal of Nervous & Mental Disease, 144, 320 –328. doi:10.1097/00005053-196704000-00011 Pirelli, G. (2008). The use of arbitrary metrics in competence to stand trial assessment instruments. (Unpublished doctoral thesis). The Graduate Center at John Jay College of Criminal Justice (The City University of New York). New York, NY. Poythress, N., Nicholson, R., Otto, R. K., Edens, J. F., Bonnie, R. J., Monahan, J., & Hoge, S. K. (1999). The MacArthur Competence Assessment Tool—Criminal Adjudication: Professional manual. Odessa, FL: Psychological Assessment Resources. *Reich, J., & Wells, J. (1985). Psychiatric diagnosis and competency to stand trial. Comprehensive Psychiatry, 26, 421– 432. doi:10.1016/0010-440X(85)90079-3 Reich, J., & Wells, J. (1986a). Defendants with repeated competency evaluations. Journal of Nervous and Mental Disease, 174, 120 –122. doi:10.1097/00005053-19860200000009 *Robertson, R. G., Gupton, T., McCabe, S. B., & Bankier, R. G. (1997). Clinical and demographic variables related to ’fitness to stand trial’ assessments in Manitoba. Canadian Journal of Psychiatry, 42(2), 191–195. Robey, A. (1965). Criteria for competency to stand trial. A checklist for psychiatrists. American Journal of Psychiatry, 122, 616 – 623.

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*Roesch, R., Eaves, D., Sollner, R., Normandin, M., & Glackman, W. (1981). Evaluating fitness to stand trial: A comparative analysis of fit and unfit defendants. International Journal of Law & Psychiatry, 4, 145–157. Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Urbana: University of Illinois Press. Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. L. (1999). Defining and assessing competency to stand trial. In A. K. Hess & I. B. Weiner (Eds.), The handbook of forensic psychology (2nd ed., pp. 327–349). New York: John Wiley & Sons, Inc. *Rogers, R., Gillis, J. R., McMain, S., & Dickens, S. E. (1988). Fitness evaluations: A retrospective study of clinical, criminal, and sociodemographic characteristics. Canadian Journal of Behavioural Science Revue canadienne des Sciences du comportement, 20, 192–200. doi:10.1037/h0079925 Rogers, R., Tillbrook, C. E., & Sewell, K. W. (2004). Evaluation of Competency to Stand Trial-Revised (ECST-R) and professional manual. Odessa, FL: Psychological Assessment Resources, Inc. *Rosenfeld, B., & Ritchie, K. (1998). Competence to stand trial: Clinician reliability and the role of offense severity. Journal of Forensic Sciences, 43(1), 151–157. Rosenthal, R. (1979). The “file drawer problem” and tolerance for null results. Psychological Bulletin, 86, 638 – 641. doi:10.1037/0033-2909.86.3.638 Rosenthal, R. (1994). Parametric measures of effect size. In H. Cooper & L. V. Hedges (Eds.), The handbook of research synthesis (pp. 231–260). New York: Russell Sage Foundation. Ryba, N. L., Cooper, V. G., & Zapf, P. A. (2003). Juvenile competence to stand trial evaluations: A survey of current practices and test usage among psychologists. Professional Psychology: Research and Practice, 34, 499 –507. doi:10.1037/07357028.34.5.499 Sa´nchez-Meca, J., Marı´n-Martı´nez, F., & Chaco´n-Mascoso, S. (2003). Effect-size indices for dichotomized outcomes in meta-analysis. Psychological Methods, 8, 448 – 467. doi:10.1037/1082-989X.8.4.448 *Sachsenmaier, S. J. (1991). The relationship between traditional psychometric test scores and the determination of criminal responsibility and competency to stand trial (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1992– 71233-001) Sandercock, P. (1989). The odds ratio: A useful tool in neurosciences. Journal of Neurology, Neurosurgery, and Psychiatry, 52, 817– 820. doi:10.1136/jnnp.52.7.817 Schumacker, R. E. (2005). Effect size and confidence intervals in general linear models for categorical data analysis. Multiple Linear Regression Viewpoints, 31(1), 42– 45. *Shields, C. L. (2005). Competence to stand trial: Cognitive-related abilities and other factors. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005–99016-192) Skeem, J., & Golding, S. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29, 357–367. doi:10.1037/0735-7028.29.4.357 Stone, A. (1975). Mental health and law: A system in transition. (DHEW Pub. No. ADM 75–176). Rockville, MD: National Institute of Mental Health. United States v. Lawrence, 26 F. Cas. 887 D. C. Cir. (1899). Vernon, M., Steinberg, A. G., & Montoya, L. A. (1999). Deaf murderers: Clinical and forensic issues. Behavioral Sciences & the Law, 17, 495–516. doi:10.1002/(SICI)1099-0798(199910/12)17:4"495::AID-BSL361%3.0.CO;2-6 Winick, B. J. (1985). Restructuring competency to stand trial. UCLA Law Review, 32, 921–985. Winick, B. J. (1996). Incompetency to proceed in the criminal process: Past, present, and

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future. In D. B. Wexler & B. J. Winick (Eds.), Law in a therapeutic key: Developments in therapeutic jurisprudence (pp. 77–111). Durham, NC: Carolina Academic Press. Youtsey v. United States, 97 F. 937, 940 (6th Cir. 1899). Zapf, P. A. (1999). An investigation of the construct of competence in a criminal and civil context: A comparison of the fit, the MacCAT-CA, and the MacCAT-T. (adjudicative competence, treatment competence, Macarthur competence assessment tool). (Doctoral Dissertation) Retrieved from Dissertation Abstracts International. (1999 –95024-036) Zapf, P. A., & Roesch, R. (2009). Evaluation of competence to stand trial. (Best Practices in Forensic Mental Health Assessment). New York: Oxford. Zapf, P. A., & Viljoen, J. L. (2003). Issues and considerations regarding the use of assessment instruments in the evaluation of competency to stand trial. Behavioral Sciences and the Law, 21, 351–367. doi:10.1002/bsl.535

Appendix A Reference List for Included Studies !Used by Nicholson & Kugler (1991) †Not used in Nicholson & Kugler, but eligible (Dissertation

†Aubrey, M. (1988). Characteristics of competency referral defendants and nonreferred criminal defendants. Journal of Psychiatry & Law, 16(2), 233–245. Bagby, R. M., Nicholson, R. A., Rogers, R., & Nussbaum, D. (1992). Domains of competency to stand trial: A factor analytic study. Law and Human Behavior, 16, 491–507. doi:10.1007/BF01044620 Bittman, B. J., & Convit, A. (1993). Competency, civil commitment, and the dangerousness of the mentally ill. Journal of Forensic Sciences, 38(6), 1460 –1466. !Bluestone, H., & Mellela, J. (1978). A study of criminal defendants referred for competency to stand trial in New York City. Bulletin of the American Academy of Psychiatry & the Law, 7(2), 166 –178. Brown, D. L., Felthous, A. R., Barratt, E. S., & Stanford, M. (1994). The incompetent defendant: Support systems help avoid future legal problems. Journal of Forensic Sciences, 39(4), 1057–1068. Caldwell, R. M., Mandracchia, S. A., Ross, S. A., & Silver, N. C. (2003). Competency to stand trial and criminal responsibility: An examination of racial and gender differences among African American and Caucasian pretrial defendants. American Journal of Forensic Psychology, 21(3), 5–19. Chaimowitz, G. A., & Ferencz, J. (1999). Cost savings associated with fitness-to-standtrial assessments in detention centres: A pilot program. The Canadian Journal of Psychiatry, 44(8), 808 – 810. (Chatfield, G. G. (1998). Repeat competence to stand trial evaluations: A marker for severe and persistent mental illness. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1998-95009-182)

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Chellsen, J. A. (1986). Trail competency among mentally retarded offenders: Assessment techniques and related considerations. Journal of Psychiatry and Law, 14(1–2), 177–185. Cochrane, R. E., Grisso, T., & Frederick, R. I. (2001). The relationship between criminal charges, diagnoses, and psycholegal opinions among federal pretrial defendants. Behavioral Sciences & the Law, 19, 565–582. doi:10.1002/bsl.454 !Cooke, G. (1969). The court study unit: Patient characteristics and differences between patients judged competent and incompetent. Journal of Clinical Psychology, 25, 140 – 143. doi:10.1002/1097-4679(196904)25:2"140::AID-JCLP2270250207%3.0.CO;2-J !Cooke, G., Pogany, E., & Johnston, N. G. (1974). A comparison of blacks and whites committed for evaluation of competency to stand trial on criminal charges. Journal of Psychiatry and Law, 2(3), 319 –337. Cooper, V. G., & Zapf, P. A. (2003). Predictor variables in competency to stand trial decisions. Law and Human Behavior, 27, 423– 436. doi:10.1023/A:1024089117535 Cox, M. L., & Zapf, P. A. (2004). An investigation of discrepancies between mental health professionals and the courts in decisions about competency. Law & Psychology Review, 28, 109 –132. Retrieved from http://law.ua.edu/lawpsychology/ Crocker, A. G., Favreau, O. E., & Caulet, M. (2002). Gender and fitness to stand trial: A 5-year review of remands in Que´bec. International Journal of Law and Psychiatry, 25, 67– 84. doi:10.1016/S0160-2527(01)00089-9 †Fitzgerald, J. F., Peszke, M. A., & Goodwin, R. C. (1978). Competency evaluations in Connecticut. Hospital & Community Psychiatry, 29(7), 450 – 453. !Golding, S. L., Roesch, R., & Schreiber, J. (1984). Assessment and conceptualization of competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Law & Human Behavior, 8, 321–334. doi:10.1007/BF01044699 †Goldstein, R. L. (1973). “The fitness factory,” part I: The psychiatrist’s role in determining competency. The American Journal of Psychiatry, 130(10), 1144 –1147. (Gothard, S. (1994). The detection of malingering in competency to stand trial evaluations. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1997-70278-001) Gothard, S., Rogers, R., & Sewell, K. W. (1995). Feigning incompetency to stand trial: An investigation of the Georgia Court Competency Test. Law and Human Behavior, 19, 363–373. doi:10.1007/BF01499137 Gothard, S., Viglione, D. J., Meloy, J. R., & Sherman, M. (1995). Detection of malingering in competency to stand trial evaluations. Law and Human Behavior, 19, 493–505. doi:10.1007/BF01499340 (Grandjean, N. R. (2004). Neuropsychological predictors of incompetency to stand trial in defendants referred for competency restoration. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2006-99002-240) †Haney, C. A., & Michielutte, R. (1968). Selective factors operating in the adjudication of incompetency. Journal of Health and Social Behavior, 9, 233–242. doi:10.2307/ 2948408 Haney, C. A., & Miller, K. S. (1970). Definitional factors in mental incompetency. Sociology & Social Research, 54(4), 520 –532. Haney, C. A., Miller, K. S., & Michielutte, R. (1969). The interaction of petitioner and deviant social characteristics in the adjudication of incompetency. Sociometry, 32, 182–193. doi:10.2307/2786262

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Hart, S. D., & Hare, R. D. (1992). Predicting fitness to stand trial: The relative power of demographic, criminal, and clinical variables. Forensic Reports, 5(1), 53– 65. !Heller, M. S., Traylor, W. H., Ehrlich, S. M., & Lester, D. (1981). Intelligence, psychosis and competency to stand trial. Bulletin of the American Academy of Psychiatry & the Law, 9(4), 267–274. !Heller, M. S., Traylor, W. H., Ehrlich, S. M., & Lester, D. (1983). Competent and incompetent defendants referred to a court psychiatric clinic: A clinical comparison. Journal of Forensic Sciences, 28(2), 415– 422. Hoge, S. K., Bonnie, R. J., Poythress, N., Monahan, J., Eisenberg, M., & Feucht-Haviar, T. (1997a). The MacArthur adjudicative competence study: Development and validation of a research instrument. Law and Human Behavior, 21, 141–179. doi: 10.1023/A:1024826312495 Hoge, S. K., Poythress, N., Bonnie, R., Eisenberg, M., Monahan, J., Feucht-Haviar, T., & Oberlander, L. (1996). Mentally ill and non-mentally ill defendants’ abilities to understand information relevant to adjudication: A preliminary study. Bulletin of the American Academy of Psychiatry & the Law, 24(2), 187–197. Hubbard, K. L., Zapf, P. A., & Ronan, K. A. (2003). Competency restoration: An examination of the differences between defendants predicted restorable and not restorable to competency. Law and Human Behavior, 27, 127–139. doi:10.1023/A: 1022566328781 Jackson, R. L., Rogers, R., & Sewell, K. W. (2005). Forensic Applications of the Miller Forensic Assessment of Symptoms Test (MFAST): Screening for Feigned Disorders in Competency to Stand Trial Evaluations. Law and Human Behavior, 29, 199 –210. doi:10.1007/s10979-005-2193-5 !Johnson, W. G., Nicholson, R. A., & Service, N. M. (1990). The relationship of competency to stand trial and criminal responsibility. Criminal Justice and Behaviour, 17, 169 –185. doi:10.1177/0093854890017002002 !Laczko, A. L., James, J. F., & Alltop, L. B. (1970). A study of four hundred and thirty-five court-referred cases. Journal of Forensic Sciences, 15(3), 311–323. (Lesser, F. I. (1990). Formulating a prediction model for regaining competency to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1991-51161-001) !Lipsitt, P. D., Lelos, D., & McGarry, A. L. (1971). Competency for trial: A screening instrument. American Journal of Psychiatry, 128(1), 105–109. Martell, D. A., Rosner, R., & Harmon, R. B. (1994). Homeless mentally disordered defendants: Competency to stand trial and mental status findings. Bulletin of the American Academy of Psychiatry & the Law, 22(2), 289 –295. (Matthews, B. (1999). Competency to stand trial and insight in mentally ill defendants. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (199995004-052) !Maxson, L. S., & Neuringer, C. (1970). Evaluating legal competency. Journal of Genetic Psychology, 117(2), 267–273. McDonald, D. A., Nussbaum, D. S., & Bagby, R. M. (1991). Reliability, validity and utility of the Fitness Interview Test. The Canadian Journal of Psychiatry, 36(7), 480 – 484.

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Mosley, D., Thyer, B. A., & Larrison, C. (2001). Development and preliminary validation of the Mosley Forensic Competency Scale. Journal of Human Behavior in the Social Environment, 4, 41– 48. (Mueller, C. L. (2007). An examination of predictor variables for competency to stand trial determinations in a multicultural setting. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2007-99016-061) Nestor, P. G., Daggett, D., Haycock, J., & Price, M. (1999). Competence to stand trial: A neuropsychological inquiry. Law and Human Behavior, 23, 397– 412. doi:10.1023/ A:1022339130582 †Nicholson, R. A. (1988). Validation of a brief form of the Competency Screening Test. Journal of Clinical Psychology, 44(1), 87–90. !Nicholson, R. A., Briggs, S. R., & Robertson, H. C. (1988). Instruments for assessing competency to stand trial: How do they work? Professional Psychology: Research and Practice, 19, 383–394. doi:10.1037/0735-7028.19.4.383 !Nicholson, R. A., Robertson, H. C., Johnson, W. G., & Jensen, G. (1988). A comparison of instruments for assessing competency to stand trial. Law and Human Behavior, 12, 313–321. doi:10.1007/BF01044387 !Nottingham, E. J., & Mattson, R. E. (1981). A validation study of the competency screening test. Law and Human Behavior, 5, 329 –336. doi:10.1007/BF01044948 Nussbaum, D., Mamak, M., Tremblay, H., Wright, P., & Callaghan, J. (1998). The METFORS Fitness Questionnaire (MFQ): A self-report measure for screening competency to stand trial. American Journal of Forensic Psychology, 16(3), 41– 65. Ohayon, M. M., Crocker, A., St-Onge, B., & Caulet, M. (1998). Fitness, responsibility, and judicially ordered assessments. The Canadian Journal of Psychiatry, 43(5), 491– 495. Otto, R. K., Poythress, N. G., Nicholson, R. A., Edens, J. F., Monahan, J., Bonnie, R. J., Hoge, S. K., & Eisenberg, M. (1998). Psychometric properties of the MacArthur Competence Assessment Tool-Criminal Adjudication. Psychological Assessment, 10, 435– 443. doi:10.1037/1040-3590.10.4.435 !Pfeiffer, E., Einstein, R. B., & Dabbs, E. G. (1967). Mental competency evaluation for the federal courts: I. Methods and results. Journal of Nervous & Mental Disease, 144, 320 –328. doi:10.1097/00005053-196704000-00011 Poythress, N. G., Hoge, S. K., Bonnie, R. J., Monahan, J., Eisenberg, M., & FeuchtHaviar, T. (1998). The competence-related abilities of women criminal defendants. Journal of the American Academy of Psychiatry and the Law, 26, 215–222. doi: 10.1007/s10979-006-9005-4 !Randolph, J. J., Hicks, T., & Mason, D. (1981). The Competency Screening Test: A replication and extension. Criminal Justice and Behavior, 8, 471– 482. doi:10.1177/ 009385488100800405 !Randolph, J. J., Hicks, T., Mason, D., & Cuneo, D. J. (1982). The Competency Screening Test: A validation study in Cook County, Illinois. Criminal Justice & Behavior, 9(4), 495–500. !Reich, J., & Wells, J. (1985). Psychiatric diagnosis and competency to stand trial. Comprehensive Psychiatry, 26, 421– 432. doi:10.1016/0010-440X(85)90079-3 (Riley, S. E. (1997). Gender and competency adjudications in a southwestern urban court system. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1997-95015-101)

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Riley, S. E. (1998). Competency to stand trial adjudication: A comparison of female and male defendants. Journal of the American Academy of Psychiatry and the Law, 26(2), 223–240. Robertson, R. G., Gupton, T., McCabe, S. B., & Bankier, R. G. (1997). Clinical and demographic variables related to “fitness to stand trial” assessments in Manitoba. The Canadian Journal of Psychiatry, 42(2), 191–195. (Roesch, R. M. (1977). Competency to stand trial: An analysis of legal/mental health issues and procedures and a proposal for change. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1979-00918-001) !Roesch, R. (1978a). A brief, immediate screening interview to determine competency to stand trial: A feasibility study. Criminal Justice & Behavior, 5, 241–248. doi: 10.1177/009385487800500304 !Roesch, R. (1978b). Competency to stand trial and court outcome. Criminal Justice Review, 3, 45–56. !Roesch, R. (1979). Determining competency to stand trial: An examination of evaluation procedures in an institutional setting. Journal of Consulting & Clinical Psychology, 47, 542–550. doi:10.1037/0022-006X.47.3.542 !Roesch, R., Eaves, D., Sollner, R., Normandin, M., & Glackman, W. (1981). Evaluating fitness to stand trial: A comparative analysis of fit and unfit defendants. International Journal of Law & Psychiatry, 4, 145–157. !Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Urbana: University of Illinois Press. Roesch, R., Ogloff, J. R. P., Hart, S. D., Dempster, R. J., Zapf, P. A., & Whittemore, K. E. (1997). The impact of Canadian criminal code changes on remands and assessments of fitness to stand trial and criminal responsibility in British Columbia. The Canadian Journal of Psychiatry, 42(5), 509 –514. !Rogers, R., Gillis, J. R., McMain, S., & Dickens, S. E. (1988). Fitness evaluations: A retrospective study of clinical, criminal, and sociodemographic characteristics. Canadian Journal of Behavioural Science Revue canadienne des Sciences du comportement, 20, 192–200. doi:10.1037/h0079925 Rosenfeld, B., & Ritchie, K. (1998). Competence to stand trial: Clinician reliability and the role of offense severity. Journal of Forensic Sciences, 43(1), 151–157. Rosenfeld, B., & Wall, A. (1998). Psychopathology and competence to stand trial. Criminal Justice and Behavior, 25, 443– 462. doi:10.1177/0093854898025004003 (Sachsenmaier, S. J. (1991). The relationship between traditional psychometric test scores and the determination of criminal responsibility and competency to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (199271233-001) Schreiber, J. (1982). Professional judgment in the assessment of competency to stand trial: Report of an evaluation study. International Journal of Law and Psychiatry, 5, 331–340. doi:10.1016/0160-2527(82)90027-9 Schreiber, J., Roesch, R., & Golding, S. L. (1987). An evaluation of procedures for assessing competency to stand trial. Bulletin of the American Academy of Psychiatry and the Law, 15(2), 187–203. !Shatin, L., & Brodsky, S. H. (1979). Competency for trial: The Competency Screening Test in an urban hospital forensic unit. The Mount Sinai Journal of Medicine, 46(2), 131–134.

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(Shields, C. L. (2005). Competence to stand trial: Cognitive-related abilities and other factors. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99016-192) !Sikorski, C. R., & Benedek, E. P. (1977). Competency to stand trial: The female offender. Journal of the American Medical Women’s Association, 32(4), 150 –154. †Simon, M. J. (1987). Use of the Proverbs Test in the assessment of competency to stand trial. Psychological Reports, 60(3), 1166. Stafford, K. P., & Wygant, D. B. (2005). The role of competency to stand trial in mental health courts. Behavioral Sciences & the Law, 23, 245–258. doi:10.1002/bsl.649 (Tillbrook, C. E. (2001). Competency to proceed: A comparative appraisal of approaches to assessment. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2001-95006-456) Viljoen, J. L., Zapf, P. A., & Roesch, R. (2003). Diagnosis, current symptomatology, and the ability to stand trial. Journal of Forensic Psychology Practice, 3, 23–37. doi: 10.1300/J158v03n04_02 Warren, J. I., Fitch, W. L., Dietz, P. E., & Rosenfeld, B. D. (1991). Criminal offense, psychiatric diagnosis, and psycholegal opinion: An analysis of 894 pretrial referrals. Bulletin of the American Academy of Psychiatry & the Law, 19(1), 63– 69. Warren, J. I., Murrie, D. C., Stejskal, W., Colwell, L. H., Morris, J., Chauhan, P., et al. (2006). Opinion formation in evaluating the adjudicative competence and restorability of criminal defendants: A review of 8,000 evaluations. Behavioral Sciences & the Law, 24, 113–132. doi:10.1002/bsl.699 Warren, J. I., Rosenfeld, B., & Fitch, W. L. (1994). Beyond competence and sanity: The influence of pretrial evaluation on case disposition. Bulletin of the American Academy of Psychiatry & the Law, 22(3), 379 –388. !Webster, C. D., Menzies, R. J., & Jackson, M. A. (1982). Clinical assessment before trial. Toronto, Ontario, Canada: Butterworths. Whittemore, K. E., Ogloff, J. R. P., & Roesch, R. (1997). An investigation of competency to participate in legal proceedings in Canada. The Canadian Journal of Psychiatry, 42(8), 869 – 875. !Wildman, R. W., White, P. A., & Brandenburg, C. E. (1990). The Georgia Court Competency Test: The base-rate problem. Perceptual and Motor Skills, 70, 1055– 1058. Zapf, P. A., Hubbard, K. L., Cooper, V. G., Wheeles, M. C., & Ronan, K. A. (2004). Have the courts abdicated their responsibility for determination of competency to stand trial to clinicians? Journal of Forensic Psychology Practice, 4, 27– 44. doi:10.1300/ J158v04n01_02 Zapf, P. A., & Roesch, R. (1997). Assessing fitness to stand trial: A comparison of institution-based evaluations and a brief screening interview. Canadian Journal of Community Mental Health, 16(1), 53– 66. Zapf, P. A., & Roesch, R. (1998). Fitness to stand trial: Characteristics of remands since the 1992 Criminal Code amendments. The Canadian Journal of Psychiatry, 43(3), 287–293. Zapf, P. A., Roesch, R., & Viljoen, J. L. (2001). Assessing Fitness to Stand Trial: The Utility of the Fitness Interview Test (Revised Edition). The Canadian Journal of Psychiatry, 46(5), 426 – 432.

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Appendix B Reference List for Excluded Studies !Used by Nicholson & Kugler (1991) †Not used in Nicholson & Kugler, but eligible (Dissertation

Addington, D. E., & Holley, H. L. (1987). Pre-trial assessment of schizophrenics on remand. The Canadian Journal of Psychiatry, 32(9), 773–776. (Amadeo, A. M. (2005). The development of a “restoration to competence” program for patients found incompetent to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99018-341) (Anderson, S. D. (1999). The effect of competency restoration training on defendants with mental retardation found not competent to proceed. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1999-95002-083) Anderson, S. D., & Hewitt, J. (2002). The effect of competency restoration training on defendants with mental retardation found not competent to proceed. Law and Human Behavior, 26, 343–352. doi:10.1023/A:1015328505884 Barnard, G. W., Nicholson, R. A., Hankins, G. C., & Raisani, K. K. (1992). Itemmetric and scale analysis of a new computer-assisted competency assessment instrument (CADCOMP). Behavioral Sciences & the Law, 10, 419 – 435. doi:10.1002/ bsl.2370100311 Barnard, G. W., Thompson, J. W., Freeman, W. C., & Robbins, L. (1991). Competency to stand trial: Description and initial evaluation of a new computer-assisted assessment tool (CADCOMP). Bulletin of the American Academy of Psychiatry & the Law, 19(4), 367–381. Beckham, J. C., Annis, L. V., & Bein, M. F. (1986). Don’t pass go: Predicting who returns from court as remaining incompetent for trial. Criminal Justice and Behavior, 13, 99 –109. doi:10.1177/0093854886013001007 (Bennett, A. D. (2006). The measurement of adjudicative competence: A comparison of three types of competencies in a sample of individuals with mental retardation. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (200699014-226) Bennett, G. T., & Kish, G. R. (1990). Incompetency to stand trial: Treatment unaffected by demographic variables. Journal of Forensic Sciences, 35(2), 403– 412. Bendt, R. H., Balcanoff, E. J., & Tragellis, G. S. (1973). Incompetency to stand trial: Is psychiatry necessary? The American Journal of Psychiatry, 130(11), 1288 –1289. Berman, L. M., & Osborne, Y. H. (1987). Attorneys’ referrals for competency to stand trial evaluations: Comparisons of referred and nonreferred clients. Behavioral Sciences & the Law, 5, 373–380. doi:10.1002/bsl.2370050310 (Bertman, L. J. (2000). Effect of an individualized treatment protocol on competency restoration in pretrial forensic inpatients. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2000-95010-190) Bertman, L. J., Thompson, J. W., Jr., Waters, W. F., Estupinan-Kane, L., Martin, J. A., & Russell, L. (2003). Effect of an Individualized Treatment Protocol on Restoration of Competency in Pretrial Forensic Inpatients. Journal of the American Academy of Psychiatry and the Law, 31(1), 27–35.

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Bertsch, J. M., Younglove, J. A., & Kerr, M. G. (2002). A pilot study of the Porterville Developmental Center’s court competency training program. Criminal Justice Policy Review, 13(1), 65–77. Buigas, R. A. (1996). Development of scales for the Computer-Assisted Determination of Competency. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1996-95009-060) Carbonell, J. L., Heilbrun, K., & Friedman, F. L. (1992). Predicting who will regain trial competency: Initial promise unfulfilled. Forensic Reports, 5(1), 67–76. !Chellsen, J. A. (1986). Trail competency among mentally retarded offenders: Assessment techniques and related considerations. Journal of Psychiatry and Law, 14(1–2), 177–185. Cooke, G., Johnston, N., & Pogany, E. (1973). Factors affecting referral to determine competency to stand trial. American Journal of Psychiatry, 130(8), 870 – 875. Cuneo, D. J., & Brelje, T. B. (1984). Predicting probability of attaining fitness to stand trial. Psychological Reports, 55(1), 35–39. Daniel, A. E., Beck, N. C., Herath, A., Schmitz, M., & Menninger, K. (1984). Factors correlated with psychiatric recommendations of incompetency and insanity. Journal of Psychiatry & Law, 12(4), 527–544. Edens, J. F., Poythress, N. G., Nicholson, R. A., & Otto, R. K. (1999). Effects of state organizational structure and forensic examiner training on pretrial competence assessments. Journal of Behavioral Health Services & Research, 26, 140 –150. doi: 10.1007/BF02287487 Everington, C. (1989). Demographic variables associated with competence to stand trial referral and evaluation of criminal defendants with mental retardation. Journal of Psychiatry & Law, 17(4), 627– 640. Everington, C. T. (1990). The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR): A validation study. Criminal Justice and Behavior, 17, 147–168. doi:10.1177/0093854890017002001 Everington, C., & Dunn, C. (1995). A second validation study of the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). Criminal Justice and Behavior, 22, 44 –59. doi:10.1177/0093854895022001004 Everington, C., Notario-Smull, H., & Horton, M. L. (2007). Can defendants with mental retardation successfully fake their performance on a test of competence to stand trial? Behavioral Sciences & the Law, 25, 545–560. doi:10.1002/bsl.735 Exner, J. E., Jr. (1980). Diagnosis versus description in competency issues. In F. Wright, C. Bahn, & R. W. Rieber (Eds.), Forensic psychology and psychiatry (pp. 20 –26). New York: New York Academy of Sciences (vol. 347). (Felchlia, M. A. (1992). Construct validity of the Competency Screening Test. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1993-71809-001) (Ficken, C. T. (2004). Using demographic and clinical variables to predict the length of stay of “Incompetent to Stand Trial” patients. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2004-99002-010) Fontaine, P. A. (1985). The case dispositions of temporarily trial-incompetent criminal defendants. Journal of Psychiatry & Law, 13(3– 4), 435– 448. (Gabel, J. E. (2007). Consistency of screening measures of malingering among pre-trial adjudicative competence defendants. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2007-99006-167)

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(Gannon, J. L. (1990). Validation of the Competency Assessment Instrument and elements of competency to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1990-55942-001) Gold, L. H. (1969). A statistical review of court-appointed psychiatric examinations. Journal of Forensic Sciences, 14(3), 294 –301. Gold, L. H. (1973). Discovery of mental illness and mental defect among offenders. Journal of Forensic Sciences, 18, 125–129. Greenland, C., & Rosenblatt, E. (1972). Remands for psychiatric examination in Ontario, 1969-1970. The Canadian Psychiatric Association Journal, 17(5), 397– 401. Heilbrun, K., Bennett, W. S., Evans, J. H., & Offutt, R. A. (1992). Assessing treatability in mentally disordered offenders: Strategies for improving reliability. Forensic Reports, 5(1), 85–96. Herbel, B. L., & Stelmach, H. (2007). Involuntary medication treatment for competency restoration of 22 defendants with delusional disorder. Journal of the American Academy of Psychiatry and the Law, 35(1), 47–59. Ho, T. (1999). Examination of racial disparity in competency to stand trial between White and African American retarded defendants. Journal of Black Studies, 29, 771–789. doi:10.1177/002193479902900602 Ho, T., & Henderson, B. B. (1998). Relationship of psychological, demographic, and legal variables to court decisions of competency to stand trial among mentally retarded criminal defendants. Journal of Criminal Justice, 26, 307–320. doi:10.1016/S00472352(98)00013-0 Hochstedler, E. (1987). Twice-cursed? The mentally disordered criminal defendant. Criminal Justice and Behavior, 14, 251–267. doi:10.1177/0093854887014003001 Hoge, S. K., Poythress, N., Bonnie, R. J., Monahan, J., Eisenberg, M., & Feucht-Haviar, T. (1997b). The MacArthur adjudicative competence study: Diagnosis, psychopathology, and competence-related abilities. Behavioral Sciences & the Law, 15, 329 –345. doi:10.1002/(SICI)1099-0798(199722/06)15:3"329::AID-BSL276%3.0.CO;2-Z (Holmes, D. A. (1991). Validation of the IFI with hospital staff judgments of competency to proceed to trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1992-75092-001) Hubbard, K. L., & Zapf, P. A. (2003). The role of demographic, criminal, and psychiatric variables in examiners’ predictions of restorability to competency to stand trial. International Journal of Forensic Mental Health, 2(2), 145–155. Jacobs, M. S., Ryba, N. L., & Zapf, P. A. (2008). Competence-related abilities and psychiatric symptoms: An analysis of the underlying structure and correlates of the MacCAT-CA and the BPRS. Law and Human Behavior, 32, 64 –77. doi:10.1007/ s10979-007-9086-8 (Jones, B. L. (1995). Factors related to the competency to proceed to trial of defendants who are mentally retarded. (Doctoral Dissertation.) Retrieved from Dissertation Abstracts International. (1995-95003-133) (Kennedy, J. D. (2008). Diagnosis, instant offense, substance history, and trial competency: An explorative study. (Doctoral Dissertation.) Retrieved from Dissertation Abstracts International. (2008-99080-361) Ladds, B. (1995). Involuntary electro-convulsive therapy to restore competency to stand trial: A five year study in New York State. Journal of Forensic Sciences, 40(2), 183–187.

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Ladds, B., Convit, A., Zito, J., & Vitrai, J. (1993). The disposition of criminal charges after involuntary medication to restore competency to stand trial. Journal of Forensic Sciences, 38(6), 1442–1459. Lamb, H. R. (1987). Incompetency to stand trial: Appropriateness and outcome. Archives of General Psychiatry, 44(8), 754 –758. Lewis, C. F., Fields, C., & Rainey, E. (2006). A Study of geriatric forensic evaluees: Who are the violent elderly? Journal of the American Academy of Psychiatry and the Law, 34(3), 324 –332. Manguno-Mire, G. M., Thompson, J. W., Shore, J. H., Croy, C. D., Artecona, J. F., & Pickering, J. W. (2007). The use of telemedicine to evaluate competency to stand trial: A preliminary randomized controlled study. Journal of the American Academy of Psychiatry and the Law, 35(4), 481– 489. McGarry, A. L. (1965). Competency for trial and due process via the state hospital. American Journal of Psychiatry, 122, 623– 631. McKee, G. R. (1998). Competency to stand trial in preadjudicatory juveniles and adults. Journal of the American Academy of Psychiatry and the Law, 26(1), 89 –99. !Menzies, R. J., Jackson, M. A., & Glasberg, R. E. (1982). The nature and consequences of forensic psychiatric decision-making. Canadian Journal of Psychiatry, 27(6), 463– 470. !Menzies, R. J., Webster, C. D., Roesch, R., Jensen, F. A. S., & Eaves, D. (1983). The Fitness Interview Test: A semi-structured instrument for assessing competency to stand trial, with a proposal for its implementation. Medicine & Law, 3, 151–162. Miller, H. A. (2004). Examining the use of the M-FAST with criminal defendants incompetent to stand trial. International Journal of Offender Therapy and Comparative Criminology, 48, 268 –280. doi:10.1177/0306624X03259167 Mossman, D. (2007). Predicting restorability of incompetent criminal defendants. Journal of the American Academy of Psychiatry and the Law, 35(1), 34 – 43. Mowbray, C. T. (1979). A study of patients treated as incompetent to stand trial. Social Psychiatry, 14, 31–39. doi:10.1007/BF00583571 Nicholson, R. A., Barnard, G. W., Robbins, L., & Hankins, G. (1994). Predicting treatment outcome for incompetent defendants. Bulletin of the American Academy of Psychiatry & the Law, 22(3), 367–377. Nicholson, R. A., & Johnson, W. G. (1991). Prediction of competency to stand trial: Contribution of demographics, type of offense, clinical characteristics, and psycholegal ability. International Journal of Law and Psychiatry, 14, 287–297. doi:10.1016/ 0160-2527(91)90009-C Nicholson, R. A., & McNulty, J. L. (1992). Outcome of hospitalization for defendants found incompetent to stand trial. Behavioral Sciences & the Law, 10, 371–383. doi:10.1002/bsl.2370100307 Nussbaum, D., & Amaral, R. (2001). Internal reliability and item analysis of the METFORS Fitness Questionnaire. American Journal of Forensic Psychology, 19(2), 65–74. Paramesh, C. R. (1987). The Competency Screening Test: Application to a state maximum security hospital population. American Journal of Forensic Psychology, 5(1), 11–15. (Patterson, H. R. (2005). Length of stay in forensic inpatients adjudicated as incompetent to stand trial. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99012-012)

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(Peacock, M. A. (2005). Mental illness as a mediator of competent behavior in persons with mental retardation. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99016-329) (Pierrel, A. S. (1986). Competency to stand trial and the mentally retarded defendant. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (198753458-001) Quinsey, V. L., Pruesse, M., & Fernley, R. (1975). A follow-up of patients found unfit to stand trial or not guilty because of insanity. The Canadian Psychiatric Association Journal, 20(6), 461– 467. Redding, R. E. (1997). Depression in jailed women defendants and its relationship to their adjudicative competence. Journal of the American Academy of Psychiatry and the Law, 25(1), 105–119. Redlich, A. D., Silverman, M., & Steiner, H. (2003). Pre-adjudicative and adjudicative competence in juveniles and young adults. Behavioral Sciences & the Law, 21, 393– 410. doi:10.1002/bsl.543 Reich, J., & Wells, J. (1986a). Defendants with repeated competency evaluations. Journal of Nervous and Mental Disease, 174, 120 –122. doi:10.1097/00005053-19860200000009 Reich, J., & Wells, J. (1986b). The association between legal charge and psychiatric diagnosis in a competency-to-stand-trial population. Social Psychiatry, 21, 206 –209. doi:10.1007/BF00584002 (Richardson, H. A. (2005). A community competency restoration program for defendants who do not meet commitment criteria. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99020-025) (Roach, R. L. (1994). Assessment of trial competency in hospitalized criminal defendants. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1996-74338-001) Robbins, E., Waters, J., & Herbert, P. (1997). Competency to stand trial evaluations: A study of actual practice in two states. Journal of the American Academy of Psychiatry and the Law, 25(4), 469 – 483. !Roesch, R., & Golding, S. L. (1977). A systems analysis of competency to stand trial procedures: Implications for forensic services in North Carolina (Pre-final draft). Urbana, IL: University of Illinois Press. Rogers, R., Jackson, R. L., Sewell, K. W., & Harrison, K. S. (2004). An Examination of the ECST-R as a Screen for Feigned Incompetency to Stand Trial. Psychological Assessment, 16, 139 –145. doi:10.1037/1040-3590.16.2.139 Rogers, R., Jackson, R. L., Sewell, K. W., Tillbrook, C. E., & Martin, M. A. (2003). Assessing dimensions of competency to stand trial: Construct validation of the ECST-R. Assessment, 10, 344 –351. doi:10.1177/1073191103259007 Rogers, R., Sewell, K. W., Grandjean, N. R., & Vitacco, M. (2002). The detection of feigned mental disorders on specific competency measures. Psychological Assessment, 14, 177–183. doi:10.1037/1040-3590.14.2.177 Rogers, R., Ustad, K. L., Sewell, K. W., & Reinhardt, V. (1996). Dimensions of incompetency: A factor analytic study of the Georgia court competency test. Behavioral Sciences & the Law, 14, 323–330. doi:10.1002/(SICI)1099-0798(199622) 14:3"323::AID-BSL243%3.0.CO;2-Z

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(Ryba, N. L. (2005). An evaluation of the influence of psychiatric symptoms and cognitive abilities on competence-related abilities. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (2005-99012-013) Shatin, L. (1979). Brief form of the Competence Screening Test for mental competence to stand trial. Journal of Clinical Psychology, 35, 464 – 467. doi:10.1002/1097-4679(197904)35:2"464::AID-JCLP2270350249%3.0.CO;2-I Siegel, A. M., & Elwork, A. (1990). Treating incompetence to stand trial. Law and Human Behavior, 14, 57– 65. doi:10.1007/BF01055789 (Simon, A. (1999). The restoration of competency to stand trial: An analysis of intervention efficacy. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (1999-95018-281) Smith, S. A. (1996). Comparison of two screening tests of competency to stand trial for defendants with mental retardation. Psychological Reports, 78(1), 234. Smith, S. A., & Broughton, S. F. (1994). Competency to stand trial and criminal responsibility: An analysis in South Carolina. Mental Retardation, 32(4), 281–287. Smith, S. A., & Hudson, R. L. (1995). A quick screening test of competency to stand trial for defendants with mental retardation. Psychological Reports, 76(1), 91–97. Stoops, R., Hess, J., Scott, T., Tolan, J., Gallucci, G., & Brierley-Bowers, P. (2007). Training competency to stand trial in an individual with intellectual disability and behavioral health concerns. Mental Health Aspects of Developmental Disabilities, 10(2), 47–52. Ustad, K. L., Rogers, R., Sewell, K. W., & Guarnaccia, C. A. (1996). Restoration of competency to stand trial: Assessment with the Georgia Court Competency Test and the Competency Screening Test. Law and Human Behavior, 20, 131–146. doi: 10.1007/BF01499351 Vann, C. R., & Morganroth, F. (1965). The psychiatrist as judge: A second look at the competence to stand trial. University of Detroit Law Journal, 43(1), 1–12. Vernon, M., Steinberg, A. G., & Montoya, L. A. (1999). Deaf murderers: Clinical and forensic issues. Behavioral Sciences & the Law, 17, 495–516. doi:10.1002/(SICI) 1099-0798(199910/12)17:4"495::AID-BSL361%3.0.CO;2-6 Viljoen, J. L., Roesch, R., & Zapf, P. A. (2002). An examination of the relationship between competency to stand trial, competency to waive interrogation rights, and psychopathology. Law and Human Behavior, 26, 481–506. doi:10.1023/A: 1020299804821 Viljoen, J. L., & Zapf, P. A. (2002). Fitness to stand trial evaluations: A comparison of referred and non-referred defendants. International Journal of Forensic Mental Health, 1(2), 127–138. Vitacco, M. J., Rogers, R., Gabel, J., & Munizza, J. (2007). An evaluation of malingering screens with competency to stand Trial patients: A known-groups comparison. Law and Human Behavior, 31, 249 –260. doi:10.1007/s10979-006-9062-8 Wall, B. W., Krupp, B. H., & Guilmette, T. (2003). Restoration of competency to stand trial: A training program for persons with mental retardation. Journal of the American Academy of Psychiatry and the Law, 31(2), 189 –201. (Whittemore, K. E. (2001). Releasing the mentally disordered offender: Disposition decisions for individuals found unfit to stand trial and not criminally responsible. (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (200195002-139)

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!Wildman, R. W., II, Batchelor, E. S., Thompson, L., Nelson, F. R., Moore, J. T., Patterson, M. E., & de Laosa, M. (1978). The Georgia Court Competency Test: An attempt to develop a rapid, quantitative measure of fitness for trial. Unpublished manuscript, Forensic Services Division, Central State Hospital, Milledgeville, GA. Wygant, D. B., Sellbom, M., Ben-Porath, Y. S., Stafford, K. P., Freeman, D. B., & Heilbronner, R. L. (2007). The relation between symptom validity testing and MMPI-2 scores as a function of forensic evaluation context. Archives of Clinical Neuropsychology, 22, 489 – 499. doi:10.1016/j.acn.2007.01.027 (Zapf, P. A. (1999). An investigation of the construct of competence in a criminal and civil context: A comparison of the fit, the MacCAT-CA, and the MacCAT-T. (adjudicative competence, treatment competence, Macarthur competence assessment tool). (Doctoral Dissertation). Retrieved from Dissertation Abstracts International. (199995024-036) Zapf, P. A., & Roesch, R. (2001). A comparison of MacCAT-CA and the FIT for making determinations of competency to stand trial. International Journal of Law and Psychiatry, 24, 81–92. doi:10.1016/S0160-2527(00)00073-X Zapf, P. A., & Roesch, R. (2005). An Investigation of the Construct of Competence: A Comparison of the FIT, the MacCAT-CA, and the MacCAT-T. Law and Human Behavior, 29, 229 –252. doi:10.1007/s10979-005-2194-4

Received July 14, 2010 Revision received September 24, 2010 Accepted September 24, 2010 y "

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M enta l Competency Eva lua tions: Guidelines for Judges a nd Attorneys Pa tricia A. Za pf a nd Rona ld Roesch

ompetency to stand trial is a concept of jurisprudence allowing the postponement of criminal proceedings for those defendants who are considered unable to participate in their defense on account of mental or physical disorder. It has been estimated that between 25,000 and 39,000 competency evaluations are conducted in the United States annually.1 That is, between 2% and 8% of all felony defendants are referred for competency evaluations.2 In this article, we will present an overview of competency laws, research, methods of assessment, and the content of reports to the courts conducted by clinicians, with the aim of providing a summary of relevant information about competency issues. The purpose of this article is to inform key participants in the legal system (prosecutors and defense attorneys, as well as judges) about the current state of the discipline of forensic psychology with respect to evaluations of competency.3

C

BACKGRO UN D & DEFIN ITIO N

Provisions allowing for a delay of trial because a defendant was incompetent to proceed have long been a part of legal due process. English common law allowed for the arraignment, trial, judgment, or execution of an alleged capital offender to be stayed if he or she “be(came) absolutely mad.”4 Over time, statutes have been created that have further defined and extended the common-law practice.

This article was adapted from Ronald Roesch, Patricia A. Zapf, Stephen L. Golding & Jennifer L. Skeem, Defining and Assessing Competency to Stand Trial, in HANDBOOK OF FORENSIC PSYCHOLOGY 327 (Irving B. Weiner & Allen K. Hess, eds., 2d ed. 1999) Footnotes

1. Steven K. Hoge, et al., The MacArthur Adjudicative Competence Study: Development and Validation of a Research Instrument, 21 LAW & HUM. BEHAV. 141 (1997); Henry J. Steadman & E. Hartstone, Defendants Incompetent to Stand Trial, in MENTALLY DISORDERED OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 39 (John Monahan & Henry J. Steadman eds., 1983). 2. Richard J. Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation, 10 BEHAV. SCI. & L. 291 (1992); STEPHEN L. GOLDING, INTERDISCIPLINARY FITNESS INTERVIEW-REVISED: A TRAINING MANUAL (1992); Steven K. Hoge, et al., Attorney-client Decision-making in Criminal Cases: Client Competence and Participation as Perceived by Their Attorneys, 10 BEHAV. SCI. & L. 385 (1992). 3. This article focuses on competency issues within the United States. For a review of competency issues with respect to Canadian laws and practice, the reader is referred to Patricia A. Zapf & Ronald Roesch, Assessing Fitness to Stand Trial: A Comparison of Institution-based Evaluations and a Brief Screening Interview, 16 CAN. J. COMMUNITY MENTAL HEALTH 53 (1997); and Patricia A. Zapf & Ronald Roesch, A Comparison of Canadian and

The modern standard in U.S. law was established in Dusky v. United States.5 Although the exact wording varies, all states use a variant of the Dusky standard to define competency.6 In Dusky, the United States Supreme Court ruled that a minimum level of rational understanding of the proceedings and ability to help one’s attorney was required: [I]t is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”7 Although the concept of competency to stand trial has been long established in law, its definition, as exemplified by the ambiguities of Dusky, has never been explicit. What is meant by “sufficient present ability”? How does one determine whether a defendant “has a rational as well as factual understanding”? To be sure, some courts8 and legislatures9 have provided general direction to evaluators in the form of articulated Dusky standards,10 but the typical forensic evaluation is left largely unguided except by a common principle, in most published cases, that evaluators cannot reach a finding of incompetency independent of the facts of the case at hand.

4. 5. 6.

7. 8. 9. 10.

American Standards for Competence to Stand Trial, INTL. J. L. & PSYCH. (in press). Hale, 1973, cited in P. R. Silten & R. Tullis, Mental Competency in Criminal Proceedings, 28 HASTINGS L.J. 1053, 1053 (1977). 362 U.S. 402 (1960). R. J. Favole, Mental Disability in the American Criminal Process: A Four Issue Survey, in MENTALLY DISORDERED O FFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 247 (John Monahan & Henry J. Steadman eds., 1983). 362 U.S. at 402 (quoting from brief of U.S. Solicitor General). See, e.g., Wieter v. Settle, 193 F. Supp. 318 (W.D. Mo. 1961). See, e.g., Utah Code Ann. § 77-15-1 et seq. (2000). Standards of competence have been one area of inquiry; the conceptualization of competence is another. Some researchers and scholars have provided reconceptualizations of competence to stand trial. Bruce J. Winick has persuasively argued that, in some circumstances, it might be in the best interests of the defendant to proceed with a trial, even if he or she is incompetent. See Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. REV. 921 (1985); and Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie, 85 J. CRIM. L. & CRIMINOLOGY 571 (1995). Winick postulated that this could take the form of a provisional trial in which the support of the defense attorney would serve to ensure protection of the defendant. This would allow the defendant to proceed with his or her case while maintaining decorum

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O VERVIEW O F LEGAL PRO CEDURES

The issue of competency may be raised at any point in the adjudication process.11 If a court determines that a bona fide doubt exists as to a defendant’s competency, it must consider this issue formally,12 and usually after a forensic evaluation, which can take place in a jail, an outpatient facility, or in an institutional setting. One legal issue that may concern evaluators of competency to stand trial is whether information obtained in a competency evaluation can be used against a defendant during the guilt phase of a trial or at sentencing. While some concerns have been raised about possible self-incrimination,13 all jurisdictions in the United States provide, either statutorily or through case law, that information obtained in a competency evaluation cannot be introduced on the issue of guilt unless the defendant places his or her mental state into evidence at either trial or sentencing hearings.14 Once a competency evaluation has been completed and the written report submitted,15 the court may schedule a hearing. If, however, both the defense and the prosecution accept the findings and recommendations in the report, a hearing does not have to take place. It is likely that in the majority of the states, a formal hearing is not held for most cases. If a hearing is held, the evaluators may be asked to testify, but most hearings are quite brief and usually only the written report of an evaluator is used. In fact, the majority of hearings last only a few minutes and are held simply to confirm the findings of evaluators.16 The ultimate decision about competency rests with the court, which is not bound by the evaluators’ recommendations.17 In most cases, however, the court accepts the recommendations of the evaluators.18 At this point defendants found competent proceed with their

11.

12. 13.

14. 15.

in the courtroom and without violating the defendant’s constitutional rights. As well, Richard J. Bonnie has provided a reformulation of competence to stand trial. Bonnie proposed a distinction between two types of competencies—competence to assist counsel and decisional competence. He argued that defendants found incompetent to assist counsel would be barred from proceeding until they were restored to competence. See Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. MIAMI L. REV. 539 (1993). Defendants found decisionally incompetent, on the other hand, may be able to proceed in certain cases where his or her lawyer is able to present a defense. Although these reformulations are consistent with psychological perspectives on competence, they have not yet been adopted by the courts. Until the courts have accepted these ideas they will not significantly impact psychological practice. Stephen. L. Golding & Ronald Roesch, Competency for Adjudication: An International Analysis, in LAW AND MENTAL HEALTH: INTERNATIONAL PERSPECTIVES 73 (David N. Weisstub ed., Vol. 4. 1988). Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966). See, e.g., W. T. Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U. CHI. L. REV. 20 (1977). Estelle v. Smith, 451 U.S. 454 (1981); GOLDING & ROESCH, supra note 11. See, for a discussion of the content of these reports, Gary B. Melton, John Petrila, Norman G. Poythress & Christopher

case. For defendants found Although the incompetent, either their trials ex a ct w ording are postponed until competency is regained or the charges are va ries, a ll sta tes dismissed, usually without use a va ria nt of prejudice. The disposition of the Dusk y sta nincompetent defendants is perhaps the most problematic area da rd to define of the competency procedures. com petency. Until the case of Jackson v. Indiana,19 virtually all states allowed the automatic and indefinite commitment of incompetent defendants. In Jackson, the U.S. Supreme Court held that defendants committed solely on the basis of incompetency “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”20 The Supreme Court did not specify how long a period of time would be reasonable nor did it indicate how progress toward the goal of regaining competency could be assessed. The Jackson decision led to revisions in state statutes to provide for alternatives to commitment as well as limits on the length of commitment.21 The length of confinement varies from state to state, with some states having specific time limits (e.g., 18 months) while other states base length of treatment on a proportion of the length of sentence that would have been given had the defendant been convicted. Once defendants are found incompetent, they may have only limited rights to refuse treatment.22 Medication is the most common form of treatment, although some jurisdictions have established treatment programs designed to increase understanding of the legal process,23 or that confront problems that

16. 17. 18.

19. 20. 21. 22.

23.

Slobogin, PSYCHOLOGICAL EVALUATIONS FOR THE C OURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS (1987); Russell C. Petrella & Norman G. Poythress, The Quality of Forensic Evaluations: An Interdisciplinary Study, 51 J. CONSULTING & CLINICAL PSYCH. 76 (1983); Jennifer L. Skeem, Stephen L. Golding, Nancy B. Cohn & Gerald Berge, The Logic and Reliability of Evaluations of Competence to Stand Trial, 22 LAW & HUMAN BEHAV. 519 (1998). HENRY J. STEADMAN , BEATING A RAP?: DEFENDANTS F OUND INCOMPETENT TO STAND TRIAL (1979). See, e.g., State v. Heger, 326 N.W.2d 855 (N.D. 1982). Stephen D. Hart & Robert D. Hare, Predicting Fitness for Trial: The Relative Power of Demographic, Criminal and Clinical Variables, 5 FORENSIC REP. 53 (1992); Steadman, supra note 16. 406 U.S. 715 (1972). 406 U.S. at 738. RONALD ROESCH & STEPHEN L. GOLDING, COMPETENCY TO STAND TRIAL (1980). See generally, Bruce J. Winick, Incompetency to Stand Trial: Developments in the Law, in MENTALLY DISORDERED OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 3 (John Monahan & Henry J. Steadman eds., 1983). L. Pendleton, Treatment of Persons Found Incompetent to Stand Trial, 137 AM. J. PSYCH. 1098 (1980); Christopher D. Webster, F. A. S. Jenson, L. Stermac, K. Gardner & D. Slomen, Psychoeducational Programmes for Forensic Psychiatric Patients, 26 CANADIAN PSYCH. 50 (1985).

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Jennifer Sk eem a nd her collea gues dem onstra ted tha t ex a m iner a greement on specific psycholega l deficits (a s opposed to genera l competency) a vera ged only 25% . . . .

hinder a defendant’s ability to participate in the defense.24 Laws regarding competence vary from state to state, although most jurisdictions follow procedures similar to those described above. RESEARCH FIN DIN GS

Though there has been some confusion over the definition of competency per se, there nevertheless appears to be generally good agreement between evaluators about whether a defendant is competent or not. The few studies of reliability that have been completed report that pairs of evaluators agree in 80% or more of the cases.25 When evaluators are highly trained and use semistructured competence assessment instruments, even higher rates of agreement have been reported.26 When base rates of findings of competency are considered, however, these high levels of agreement are less impressive and they do not suggest that evaluators are necessarily in agreement about the criteria for a determination of competency. A psychologist, without even directly assessing a group of defendants, could achieve high levels of agreement with an examining clinician, simply by calling all defendants competent (base-rate decision). Since in most jurisdictions, approximately 80% of all referred defendants are competent, the psychologist and the examiner would have modest agreement, even with making no decisions at all. Most disturbingly, Jennifer Skeem and her colleagues demonstrated that examiner agreement on specific psycholegal deficits (as opposed to overall competency) averaged only 25% across a series of competency domains.27 It is the more difficult decisions, involving cases where competency is truly a serious question, that are of concern. How reliable are decisions about these cases? To date, no study has accumulated enough of these cases to answer this question. High levels of reliability do not, of course, ensure that valid decisions are being made. Two evaluators could agree that the presence of psychosis automatically leads to a finding of incompetency. As long as the evaluators are in agreement about their

24. D. L. Davis, Treatment Planning for the Patient Who Is Incompetent to Stand Trial, 36 HOSPITAL & COMMUNITY PSYCH. 268 (1985); A. M. Siegel & A. Elwork, Treating Incompetence to Stand Trial, 14 LAW & HUM. BEHAV. 57 (1990). 25. Norman G. Poythress & H. V. Stock, Competency to Stand Trial: A Historical Review and Some New Data, 8 PSYCH. & LAW 131 (1980); Roesch & Golding, supra note 21; Skeem, et al., supra note 15. 26. Stephen L. Golding, Ronald Roesch & Jan Schreiber, Assessment and Conceptualization of Competency to Stand Trial: Preliminary Data on the Interdisciplinary Fitness Interview, 8 LAW & HUM. BEHAV. 321 (1984); Robert A. Nicholson, & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative Review of Comparative Research, 109 PSYCH. BULL. 355 (1991). 27. See Skeem, et al. supra note 15. Competency domains might include ability to understand the nature of the proceedings, a fac-

criteria for determining psychosis, the reliability of their final judgments about competency will be high. It is quite possible that the criteria used by too many evaluators inappropriately rely on traditional mental status issues without considering the functional aspects of a particular defendant’s case. As we have indicated, the courts usually accept mental health judgments about competency. Does this mean that the judgments are valid? Not necessarily, since courts often accept the evaluator’s definition of competency and his or her conclusions without review, leading to very high levels of examiner-judge agreement.28 We have argued that the only ultimate way of assessing the validity of decisions about incompetency is to allow defendants who are believed to be incompetent to proceed with a trial anyway.29 This could be a provisional trial (on the Illinois model), in which assessment of a defendant’s performance could continue. If a defendant was unable to participate, then the trial could be stopped. If a verdict had already been reached and the defendant was convicted, the verdict could be set aside. We suspect that in a significant percentage of trials, alleged incompetent defendants would be able to participate. In addition to the obvious advantages to defendants, the use of a provisional trial could provide valuable information about what should be expected of a defendant in certain judicial proceedings (e.g., the ability to testify, identify witnesses, describe events, evaluate the testimony of other witnesses, etc.). Short of a provisional trial, it may be possible to address the validity issue by having independent experts evaluate the information provided by evaluators and other collateral information sources. In the next section, we will review various methods for assessing competency. CURREN T STATE O F ASSESSM EN T

A major change that has occurred within the past few decades has been the development of a number of instruments specifically designed for assessing competence. This work was pioneered by A. Louis McGarry and his colleagues.30 Their work was the starting point for a more sophisticated and systematic approach to the assessment of competency. In 1986, Thomas Grisso coined the term “forensic assessment instrument” (FAI) to refer to instruments that provide frameworks for conducting forensic assessments.31 FAIs are typically semistructured elicitation procedures and

28. 29. 30.

31.

tual understanding of the proceedings, and rational understanding of the proceedings and are set out in each state’s competency statutes. Hart & Hare, supra note 18; Skeem, et al., supra note 15. See ROESCH & GOLDING, supra note 21. Paul D. Lipsitt, D. Lelos & A. Louis McGarry, Competency for Trial: A Screening Instrument, 128 AMER. J. PSYCH. 105 (1971); A. Louis McGarry, Competency for Trial and Due Process via the State Hospital, 122 AM. J. PSYCH. 623 (1965); A. LOUIS MCGARRY, & W. J. CURRAN, COMPETENCY TO STAND TRIAL AND MENTAL ILLNESS (1973). THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (1986).

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lack the characteristics of many traditional psychological tests. However, they serve to make forensic assessments more systematic. These instruments help evaluators to collect important and relevant information and to follow the decision-making process that is required under the law. Since the time that the term was coined, a number of assessment instruments have been developed that are designed to work in this way, and it appears that the use of FAIs has been slowly increasing.32 This trend is encouraging in that empirical data suggest that trained examiners using FAIs achieve the highest levels of inter-examiner and examiner-adjudication agreement.33 Next, we will briefly describe a few of these recently developed instruments. The MacArthur Competence Assessment Tool— Criminal Adjudication. This measure, known as the MacCAT-CA,34 was developed as part of the MacArthur Network on Mental Health and the Law. It was developed from a number of research instruments35 and assesses three main abilities: understanding, reasoning, and appreciation. The MacCAT-CA consists of 22 items and takes approximately 30 minutes to administer. The basis of the items is a short story about two men who get into a fight and one is subsequently charged with a criminal offense. The first eight items assess the individual’s understanding of the legal system. Most of these items consist of two parts. The defendant’s ability to understand is first assessed and, if it is unsatisfactory or appears to be questionable, the information is then disclosed to the defendant and his or her understanding is again assessed. This allows the evaluator to determine whether or not the individual is able to learn disclosed information. The next eight items assess the individual’s reasoning skills by asking which of two disclosed facts would be most relevant to the case. Finally, the last six items assess the individual’s appreciation of his or her own circumstances. National norms for the MacCAT-CA have been developed and published.36 Other Specialized Assessment Instruments. In recent years, there has been a move toward the development of competence

assessment instruments for W hile a n specialized populations of a ssessment of the defendants. We will not go into detail about these spementa l sta tus of cialized instruments here but a defenda nt is the reader should be aware importa nt, it is that they exist. Carol Everington has developed an not sufficient a s instrument designed to assess a method of competence with mentally eva lua ting retarded defendants called the Competence Assessment competency. for Standing Trial for Defendants with Mental Retardation (CAST-MR).37 Recent research on the CAST-MR has indicated that this instrument shows good reliability and validity.38 Other researchers have focused their efforts on another special population—juvenile defendants,39 finding that younger defendants are more likely to be found incompetent.

32. Randy Borum & Thomas Grisso, Psychological Test Use in Criminal Forensic Evaluations, 26 PROF. PSYCH.: RES. & PRAC. 465 (1995). 33. Golding, Roesch & Schreiber, supra note 26; Nicholson & Kugler, supra note 26; Skeem, et al., supra note 15. 34. STEVEN K. HOGE, RICHARD J. BONNIE, NORMAN G. POYTHRESS & JOHN MONAHAN, THE MACARTHUR COMPETENCE ASSESSMENT TOOL CRIMINAL ADJUDICATION (MACCAT-CA) (1999). 35. For a complete discussion of its development, see Hoge, et al., supra note 1. 36. See HOGE, ET AL., supra note 34. 37. Carol T. Everington, The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR): A Validation Study, 17 CRIM. J. & BEHAV. 147 (1990). 38. Carol Everington & C. Dunn, A Second Validation Study of the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR), 22 CRIM. J. & BEHAV. 44 (1995). 39. Deborah K. Cooper, Juvenile Competency to Stand Trial: The Effects of Age and Presentation of Factual Information in the Attainment of Competency in Juveniles, 56 (10-B) DISSERTATION ABSTRACTS INTERNATIONAL 5761 (1995); V. L. Cowden & G. R. McKee,

Competency to Stand Trial in Juvenile Delinquency Proceedings— Cognitive Maturity and the Attorney-Client Relationship, 33 U. LOUISVILLE J. FAM. L. 629 (1995). 40. A recent Supreme Court decision (Godinez v. Moran, 509 U.S. 389 (1993), discussed later) has been interpreted by some as being in opposition to a functional evaluation approach and, therefore, indicative of tension between the application of good social science principles and the views of the U.S. Supreme Court. The ruling in Godinez indicated that the standard for all types of competence was to be the same (i.e., that set out in Dusky) to meet the constitutional minimum. In Godinez, the Court noted that “while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements.” Id. at 402. Therefore, it appears that the functional evaluation approach may still be used in those states that have adopted more elaborate standards of competence while still satisfying the minimum Dusky standard. 41. See, e.g., Wilson v. United States, 391 F. 2d. 460 (D.C. Cir. 1968); Ritchie v. Indiana, 468 N. E. 2d. 1369 (Ind. 1984). 42. 653 S. W. 2d. 167 (Mo. 1983).

THE FUN CTIO N AL EVALUATIO N APPRO ACH

Although there are numerous ways in which to conduct competency evaluations, we believe that the most reasonable approach to the assessment of competency is based on a functional evaluation of a defendant’s ability matched to the contextualized demands of the case.40 While an assessment of the mental status of a defendant is important, it is not sufficient as a method of evaluating competency. Rather, the mental status information must be related to the specific demands of the legal case, as has been suggested by legal decisions such as the ones involving amnesia. As in the case of psychosis, a defendant with amnesia is not per se incompetent to stand trial, as has been held in a number of cases.41 In State v. Davis,42 the defendant had memory problems due to brain damage. Nevertheless, the Missouri Supreme Court held that amnesia by itself was not a sufficient reason to bar the trial of an otherwise competent defen-

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dant. In State v. Austed,43 the Montana Supreme Court held that the bulk of the evidence against the defendant was physical and not affected by amnesia. Finally, in a Maryland decision,44 the court held that, because of the potential for fraud, amnesia does not justify a finding of incompetence. The court also stated that everyone has amnesia to some degree since the passage of time erodes memory. These decisions are of interest because they support the view that evaluators cannot reach a finding of incompetency independent of the facts of the legal case—an issue we will return to later. Similarly, a defendant may be psychotic and still be found competent to stand trial if the symptoms do not impair the defendant’s functional ability to consult with his or her attorney and otherwise rationally participate in the legal process. Some cases are more complex than others and may, as a result, require different types of psycholegal abilities. Thus, it may be that the same defendant is competent for one type of legal proceeding but not for others. In certain cases, a defendant may be required to testify. In this instance, a defendant who is likely to withdraw in a catatonic-like state may be incompetent. But the same defendant may be able to proceed if the attorney intends to plea bargain (the way in which the vast majority of all criminal cases are handled). The functional approach is illustrated in the famous amnesia case of Wilson v. United States.45 In that decision, the U.S. Court of Appeals for the District of Columbia held that six factors should be considered in determining whether a defendant’s amnesia impaired the ability to stand trial: • The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer. • The extent to which the amnesia affected the defendant’s ability to testify in his own behalf. • The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonable possible alibi. • The extent to which the government assisted the defendant and his counsel in that reconstruction. • The strength of the prosecution’s case. Most important

here will be whether the government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so. • Any other facts and circumstances that would indicate whether or not the defendant had a fair trial.46 One could substitute any symptom for amnesia in the above quote. If this were done, the evaluation of competency would certainly be one based on a determination of the manner in which a defendant’s incapacity may have an effect on the legal proceedings. In fact, some states, such as Florida47 and Utah,48 already specify that the evaluators must relate a defendant’s mental condition to clearly defined legal factors, such as the defendant’s appreciation of the charges, the range and nature of possible penalties, and capacity to disclose to the defense attorney pertinent facts surrounding the alleged offense.49 Utah’s statute goes the furthest in this direction, specifying the most comprehensive range of psycholegal abilities to be addressed by evaluators (including the negative effects of medication as well as decisional competencies) and also requiring judges to identify specifically which psycholegal abilities are impaired when a defendant is found incompetent. The most important aspect of assessing competence, therefore, is an assessment of the specific psycholegal abilities required of a particular defendant. That is, competence should be considered within the context in which it is to be used: the abilities required by the defendant in his or her specific case should be taken into account when assessing competence. This contextual perspective was summarized by Stephen Golding and Ronald Roesch 50 as follows: Mere presence of severe disturbance (a psychopathological criterion) is only a threshold issue—it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome.51 The importance of a contextual determination of specific psycholegal abilities has been repeatedly demonstrated by empirical findings that competency assessments in one area of functioning are rarely homogeneous with assessments in other areas of functioning.52 For example, assessments of compe-

43. 44. 45. 46. 47.

52. Bonnie, supra note 2; Bonnie, supra note 10; Thomas Grisso, Paul Appelbaum, Edward Mulvey & K. Fletcher, The MacArthur Treatment Competence Study II: Measures of Abilities Related to Competence to Consent to Treatment, 19 LAW & HUM. BEHAV. 127 (1995); Skeem, et al., supra note 15; Karen E. Whittemore, James R. P. Ogloff & Ronald Roesch, An Investigation of Competency to Participate in Legal Proceedings in Canada, 42 CANADIAN J. PSYCH. 1 (1997); Patricia A. Zapf, An Investigation of the Construct of Competence in a Criminal and Civil Context: A Comparison of the FIT, the MacCAT-CA, and the MacCAT, DISSERTATION ABSTRACTS INTERNATIONAL (1998).

[C]ompetence should be considered w ithin the contex t in w hich it is to be used: the a bilities required by the defenda nt in his or her specific ca se should be ta k en into a ccount . . . .

48. 49. 50. 51.

641 P. 2d. 1373 (Mont. 1982). Morrow v. Maryland, 443 A. 2d. 108 (Md. 1982). 391 F. 2d. 460. Id. at 463-64. Fl. R. Crim. Pro. § 3.21 (a)(1); see Bruce Winick, supra note 22, at 38. Utah Code Ann. § 77-15-1 et seq. (2000). Winick, supra note 22, at 38. Golding & Roesch, supra note 11. Id. at 79 (emphasis in original).

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tency to stand trial may not necessarily correspond with assessments of competency to plead guilty. Likewise, assessments of competency to waive Miranda may not correspond with assessments of competency to stand trial or competency to plead guilty. A more recent Supreme Court decision, however, has confused this issue by finding that the standard by which competency to be judged is not context-specific. In Godinez v. Moran,53 the United States Supreme Court held that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority: The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for “reasoned choice” among the alternatives available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a “rational understanding” of the proceedings—is not readily apparent to us. . . . While the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.54 In his dissent, Justice Blackmun argued that the “majority’s analysis [was] contrary to both common sense and long-standing case law.”55 He reasoned that competency could be considered in a vacuum, separate from its specific legal context. Justice Blackmun argued that “[c]ompetency for one purpose does not necessarily translate to competency for another purpose”56 and noted that prior Supreme Court cases had “required competency evaluations to be specifically tailored to the context and purpose of a proceeding.”57 What was egregiously missing from the majority’s opinion in Godinez, however, was the fact that Moran’s competency to waive counsel or plead guilty to death penalty murder charges was never assessed by the forensic examiners, regardless of which standard (rational choice or rational understanding) was employed. The Godinez holding has been subsequently criticized by legal scholars58 and courts alike. In a concurring opinion, one federal appellate judge wrote that the case under review “presents us with a window through which to view the real-world effects of the Supreme Court’s decision in Godinez v. Moran,

and it is not a pretty sight.”59 The problem is not whether or not the standards for various psycholegal competencies are higher, different, or the same, but rather, more fundamentally, whether or not the defendant has been examined with respect to these issues in the first place.

53. 54. 55. 56. 57.

58. Michael L. Perlin, “Dignity Was the First to Leave”: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants, 14 BEHAV. SCI. & L. 61, 81 (1996). 59. Government of the Virgin Islands v. Charles, 72 F.3d 401, 411 (3rd Cir. 1995)(Lewis, J., concurring).

509 U.S. 389 (1993). Id. at 397-99. Id. at 409. Id. at 413. Id. at 2694.

The Godinez holding ha s been subsequently criticized by lega l schola rs a nd courts a lik e.

REPO RTS

In this final section, we will outline the information that should be contained in reports that are submitted to the court with respect to the issue of competence. One of the first pieces of information that should be contained in the report is the defendant’s identifying information. This usually includes the defendant’s demographics, the circumstances of the referral, the defendant’s criminal charges, and some statement about the current stage of proceedings. Another piece of information that should be included relatively early in the report is some statement about the procedures that were used for the competency evaluation. This should include the dates and places that the defendant was interviewed, any psychological tests or forensic assessment instruments that were administered to the defendant, other data gathered, collateral information or interviews used, documents reviewed, and the techniques used during the evaluation. A section on the defendant’s relevant history, usually including psychiatric/medical history, education, employment, and social history, is necessary to give the defendant’s background and to note any important aspects of the defendant’s background that may impact upon his or her case in some way. There are two areas that must be addressed in a competency report: the defendant’s current clinical presentation (including the defendant’s presentation and possibly his or her motivation, test results, reports of others, and diagnosis) and some statement about the defendant’s ability to proceed to trial (or the next stage in the proceedings). These two areas are the focal point of the evaluation. Since we advocate for a functional assessment of a defendant’s competencies, we believe that it is necessary that the evaluator ask questions that are pertinent to the individual defendant’s case. A good competency report will set out each of the specific criteria that are required within the jurisdiction and will offer an opinion as to whether the defendant meets each of the specific criteria. These statements should be supported with the evaluator’s behavioral observations of the defendant or through illustrative dialogue between the defendant and the evaluator. In addition to these two areas that must be addressed, a useful report will also contain a section

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where the evaluator will present his or her opinion regarding the defendant’s competency to proceed. Although evaluators are prohibited from speaking to the ultimate legal issue of competency, they are expected to arrive at some conclusion about a defendant’s competency. A good report should include the evaluator’s final opinion as to whether or not a defendant meets the required criteria to proceed. As we indicated earlier, in the majority of cases, the court accepts the recommendation of the evaluator.60 A poorly prepared report is one that does not include the basic information described above. Those components of a report that are considered to be essential include names, relevant dates, charges, data sources, notification to defendant of the purpose of the evaluation, limits on confidentiality, psychiatric history, current mental status, current use of psychotropic medication, and information specific to each forensic question being assessed.61 With respect to the use of forensic assessment instruments or formal psychological testing, Randy Borum and Thomas Grisso found, in a survey of assessment practices, that one-third of respondents reported using forensic assessment instruments regularly, whereas most respondents reported using general psychological instruments (such as the Wechsler Adult Intelligence Scale) in forensic assessments.62 In light of the advances in the area of forensic assessment and the development of specialized forensic assessment instruments, the practice of routinely using only general psychological instruments, in lieu of forensic assessment instruments, appears to be inadequate. A poorly prepared report will include opinions that have no basis. If the author of a report states opinions without also including the bases for the opinion, one should be skeptical. It is good psychological practice to back up any stated opinion with observations, descriptions, and justifications for why that opinion was reached. It is also good practice to detail behavioral observations and descriptions that lend support for an opinion as well as any other observations that may be in opposition to the opinion reached. That is, any inconsistencies that were noted throughout the evaluation as well as any alternative hypotheses that may be reached will also be documented in a good report. The Florida Rules of Criminal Procedure63 provide a useful report checklist by requiring that each of the following elements must be contained in a written report submitted by an expert: • the specific matters referred for evaluation,

• the evaluative procedures, techniques and tests used in the examination and the purpose or purposes for each, • the expert’s clinical observations, findings and opinions on each issue referred for evaluation by the court, indicating specifically those issues, if any, on which the expert could not give an opinion, and • the sources of information used by the expert and the factual basis for the expert’s clinical findings and opinions. In some jurisdictions, if the evaluator concludes that the defendant could be considered incompetent to proceed, some statement about the restorability of the defendant is required to be included in the report. In addition, some jurisdictions require evaluators to include an opinion regarding whether the defendant would meet criteria for commitment. Finally, some jurisdictions require the evaluator to include other recommendations, such as the possibility of counseling for the defendant, treatment for the defendant while incarcerated, or other special observation precautions.

60. Hart & Hare, supra note 18. 61. Randy Borum & Thomas Grisso, Establishing Standards for Criminal Forensic Reports: An Empirical Analysis, 24 BULL. AMER.

ACAD. PSYCH. & L. 297 (1996). 62. Borum & Grisso, supra note 32. 63. Fl. R. Crim. Pro. § 3.211 (a).

[A] functiona l eva lua tion of competence is consistent w ith psychologica l theory a nd resea rch. Com petence is not a globa l construct, but ra ther is contex t-specific.

SUM M ARY AN D CO N CLUSIO N S

To conclude, we leave the reader with a summary of the five main points discussed in this article. First, the Dusky standard sets the foundation for every state’s competency-to-stand-trial standard. In addition, as per the decision in Godinez, the Dusky standard also sets the foundation for every state’s standards for other types of criminal competencies (e.g., competency to waive Miranda rights, competency to plead guilty, competency to confess). Each state is free to elaborate standards for different types of competencies; however, the Dusky standard is the minimum constitutional requirement. Second, there is no true way to assess the validity of competency determinations short of a provisional trial. The only way to truly determine that an individual is not able to participate in his or her own defense is to allow that individual to proceed. As we have described, some states have these provisions but they are not utilized. Third, a functional evaluation of competence is consistent with psychological theory and research. Competence is not a global construct, but rather is context-specific. It is possible for an individual to be competent with respect to one area of functioning but incompetent with respect to another. A good forensic evaluation will assess a specific individual’s competence with respect to a particular set of abilities, in light of the specific characteristics of the individual and the circumstances of the individual’s case. Fourth, there have been a number of forensic assessment instruments developed to assist evaluators in the assessment of competency. In general, reliability increases with the use of these instruments. Fifth, a good forensic report must include information about the defendant’s current clinical presentation as well as information about the specific forensic question being assessed

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(i.e., competency to proceed). In addition, a good forensic report should include descriptions and observations that serve as the basis for the opinions or conclusions stated in the report. The purpose of this article was to present an overview of competency laws, research, methods of assessment, and the content of competency reports submitted to the courts by expert evaluators. We believe that by informing legal professionals of the current state of the discipline with respect to competency evaluations we will begin to bridge the gap that often exists between psychology and the legal profession. There exists a body of research and literature that examines issues that are at the heart of both psychology and the law; however, often this literature is only accessed by one set of professionals or another. We hope that publishing articles such as this, in sources that are easily accessed by legal professionals, and in a format familiar to legal professionals, will facilitate a better understanding of psychology as it pertains to the legal system. Patricia A. Zapf is an assistant professor of psychology at the University of Alabama. She received her Ph.D. in psychology in 1999 from Simon Fraser University in Canada. Her prior publications in the field of psychology have included ones concerning the assessment of competency to stand trial and the usefulness of various methods of competency assessment. Ronald Roesch is a professor of psychology at Simon Fraser University in Burnaby, British Columbia, Canada. From 1988 to 1996, he was the editor of Law and Human Behavior, one of the leading journals in law and psychology; he presently edits a series of books sponsored by the American Psychology-Law Society (APLS), a division of the American Psychological Association. Roesch was president of the APLS in 1993-94. He has studied and written about issues involving the assessment of competency to stand trial for more than two decades.

AM ERICAN JUDGES ASSO CIATIO N Future Conferences

2001 Midyear Meeting March 29-31, 2001 Hot Springs, Arkansas Austin Hot Springs Convention Center ($90 single or double) 2001 Annual Conference September 30-October 5, 2001 Reno, Nevada Silver Legacy Resort ($89 single or double) 2002 Midyear Meeting Biloxi, Mississippi (Dates and hotel to be determined) 2002 Annual Conference September 8-13, 2002 Maui, Hawaii The Westin Maui ($155 single or double, golf/mountain view; $169 single or double, ocean view) 2003 Midyear Meeting Billings, Montana (Dates and hotel to be determined) 2003 Annual Conference Montreal, Quebec (Dates and hotel to be determined)

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2 Evaluation of Competence to Stand Trial in Adults PAT R I C I A A . Z A P F A N D R O N A L D R O E S C H

his chapter provides a review of the legal context for competency evaluations and the relevant forensic mental health concepts, a discussion of the empirical foundations and limitations of competency evaluation, and information about the evaluation process, report writing, and testimony for legal professionals involved in cases where the competency issue is raised (see Zapf & Roesch, 2009, for a more detailed review).

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be raised at any stage of the proceedings—from arrest to verdict to sentencing. Bonnie (1992), Poythress and colleagues (1999, 2002), and others have suggested the use of terms such as adjudicative competence or competence to proceed to better reflect the reality of this doctrine. Throughout this chapter the terms competency to stand trial, adjudicative competence, and competency to proceed are used interchangeably.

LEGAL CONTEXT The legal context for competency to stand trial in the United States can be traced back to English common law dating from at least the 14th century. The competency doctrine evolved at a time when defendants were not provided with the right to assistance of counsel and, in many cases, were expected to present their defense alone and unaided. Various legal commentators have delineated several principles underlying the rationale for the competency doctrine. The Group for the Advancement of Psychiatry (1974) summarized four underlying principles: (1) to safeguard the accuracy of any criminal adjudication; (2) to guarantee a fair trial; (3) to preserve the dignity and integrity of the legal process; and (4) to be certain that the defendant, if found guilty, knows why he is being punished (p. 889). Bonnie (1992) explained that allowing only those who are competent to proceed protects the dignity, reliability, and autonomy of the proceedings. The underlying rationale, then, concerns both the protection of the defendant as well as the protection of the state’s interest in fair and reliable proceedings. Although the term competency to stand trial has been used for centuries, there has begun a recent shift in terminology to reflect the fact that the vast majority of cases are plead out before getting to trial and that the issue of “trial” competency can

Legal Standards for Competency Legal standards for adjudicative competence clearly define competency as an issue of a defendant’s present mental status and functional abilities as they relate to participation in the trial process. This distinguishes competency from criminal responsibility, which refers to a defendant’s mental state at the time of the offense. In an extremely brief decision, the U.S. Supreme Court established the modernday standard for competency to stand trial in Dusky v. United States (1960). Citing a recommendation of the Solicitor General, the Court held that “the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him” (p. 402). Fifteen years after Dusky, the United States Supreme Court in Drope v. Missouri (1975) appeared to elaborate slightly on the competency standard by including the notion that the defendant must be able to “assist in preparing his defense” (p.171). Legal scholars, such as Bonnie (1993), as well as the American Bar Association Criminal Justice Mental Health Standards (1989), indicated that Drope added another prong to Dusky by requiring that defendant be able to “otherwise assist with his defense” (ABA, 1989, p. 170). Similarly, the addition of this “otherwise assist” prong to the Dusky

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standard has been affirmed in cases such as United States v. Duhon (2000). The federal standard for competency and each of the states’ competency standards mirror Dusky, either verbatim or with minor revision, but at least five states (Alaska, Florida, Illinois, New Jersey, Utah) have also expanded or articulated the Dusky standard to include specific functional abilities. Since the definition of competency varies by state, it is necessary for an evaluator to consult the relevant competency statutes and definitions before proceeding with the evaluation of a defendant’s competency. Legal professionals who retain competency evaluators may wish to confirm that the evaluator is familiar with the relevant jurisdictional standards and procedures. Case Law Subsequent to Dusky Case law subsequent to Dusky serves to offer some elaboration and interpretation of that competency standard. In Wieter v. Settle (1961), the United States District Court for the Western District of Missouri determined that it was improper to further detain a defendant who had been charged with a misdemeanor offense and held for 18 months for competency restoration since prosecution was no longer probable. In delivering the court’s opinion, Chief Judge Ridge delineated a series of eight functional abilities related to Dusky that a defendant must possess to be competent (see p. 320). The U.S. Court of Appeals considered the relevance of amnesia to adequate participation in legal proceedings in Wilson v. United States (1968). The court, in Wilson, delineated six factors that need to be considered (see pp. 463–464). The Wilson factors clearly specify a functional approach to evaluating competency, in which the specific deficits of a defendant would be related to the legal context. All defendants are provided the Constitutional right to assistance of counsel; however, defendants may choose to waive this right and represent themselves (to appear pro se). This raises the question of whether competence to waive counsel should be evaluated separately from competency to stand trial. The U.S. Supreme Court considered the issue of whether a higher standard should apply for waiving counsel or pleading guilty in Godinez v. Moran (1993). The U.S. Supreme Court rejected the argument that although the defendant was found competent to stand trial, he was not competent to waive his right to counsel and represent himself, and held

that “while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights” (p. 2686). Thus, the Court in Godinez indicated that the Dusky standard is the Constitutional minimum to be applied, regardless of the specific legal context, and that a defendant’s decision-making abilities appear to be encompassed within this standard. The Supreme Court revisited the issue of competency to represent oneself (proceed pro se) in Indiana v. Edwards (2008), where it considered the issue of whether a State, in the case of a criminal defendant who meets the Dusky standard for competence to stand trial, can limit a defendant’s right to self-representation by requiring that the defendant be represented by counsel at trial. The Court answered in the affirmative, thereby establishing that competence to proceed pro se requires a higher level of competence than competence to stand trial, but was silent on the issue of how this should be determined. The Court was clear to make the differentiation between their decision in Edwards and that in Godinez by stating that the issue in Godinez was whether the defendant was competent to waive counsel, not represent himself. Competency Procedures Legal procedures are well established to ensure that defendants are competent to proceed. In Pate v. Robinson (1966), the Supreme Court held that the competency issue must be raised by any officer of the court (defense, prosecution, or judge) if there is a bona fide doubt as to a defendant’s competence. The threshold for establishing a bona fide doubt is low, and most courts will order an evaluation of competence once the issue has been raised. Commenting on its decision in Pate, the Supreme Court in Drope v. Missouri (1975) noted that “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some

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Evaluation of Competence to Stand Trial in Adults circumstances, be sufficient” (p. 180). The Drope Court added that even when a defendant is competent at the outset of trial, the trial court should be aware of any changes in a defendant’s condition that might raise question about his competency to stand trial. Thus, the issue of competency can be raised at any time prior to or during a trial. Mental health professionals are called upon to evaluate defendants with respect to their competency and once the evaluation has been completed and a report submitted to the court, a hearing is scheduled to adjudicate the issue of competence (these hearings usually take place in front of a judge but a few jurisdictions allow for a jury to hear the issue of competency in certain circumstances). Cooper v. Oklahoma (1996) established that incompetency must be proved by a preponderance of evidence, and not the higher standard of clear and convincing evidence. The evaluator’s report is highly influential in the court’s decisions. Often, the opinion of a clinician is not disputed, and the court may simply accept the recommendations made in the report. Indeed, research has shown that the courts agree with report recommendations upwards of 90% of the time (Hart & Hare, 1992; Zapf, Hubbard, Cooper, Wheeles, & Ronan, 2004). Thus, this appears to be the norm in those jurisdictions in which the court orders only one evaluator to assess competency. Hearings on the issue of competency appear to occur more often, although still relatively infrequently, in those jurisdictions where two experts are asked to evaluate competency. Defendants determined to be competent may then proceed with trial or with another disposition of their criminal case. The trial of defendants found incompetent is postponed until competency has been restored or, in a small percentage of cases, until a determination is made that the defendant is unlikely to regain competency. Competency Restoration Until the landmark case of Jackson v. Indiana (1972), most states allowed the automatic and indefinite confinement of incompetent defendants. This resulted in many defendants being held for lengthy periods of time, often beyond the sentence that might have been imposed had they been convicted. This practice was challenged in Jackson. The U.S. Supreme Court in Jackson held that defendants committed solely on the basis of incompetency “cannot be held more than the reasonable period

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of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future” (p. 738). The Court did not specify limits to the length of time a defendant could reasonably be held, nor did it indicate how progress toward the goal of regaining competency could be assessed. Nevertheless, this decision resulted in changes to state laws regarding confinement of incompetent defendants. Many states now place limits on the maximum length of time a defendant can be held and, if a defendant is determined to be unlikely to ever regain competency, the commitment based on incompetency must be terminated. However, in many states the actual impact of Jackson may be minimal (Morris, Haroun, & Naimark, 2004). State laws regarding treatment of incompetent defendants vary considerably, and Morris and colleagues found that many states ignore or circumvent Jackson by imposing lengthy commitment periods before a determination of unrestorability can be made, or tie the length of confinement to the sentence that could have been imposed had the individual been convicted of the original charge(s). Even after a period of confinement and a determination that competency is unlikely to be restored in the foreseeable future it is possible that such defendants could be civilly committed, but United States v. Duhon (2000) makes clear that defendants who are not dangerous must be released. Charges against defendants who are not restorable are typically dismissed, although sometimes with the provision that they can be reinstated if competency is regained. Medication Medication is the most common and arguably most effective means of treatment for incompetent defendants; however, defendants do have the right to refuse medication. There have been two major cases decided by the U.S. Supreme Court dealing with the issue of the involuntary medication of defendants who had been found incompetent to stand trial. In Riggins v. Nevada (1992), David Riggins had been prescribed Mellaril® and found competent to stand trial. He submitted a motion requesting that he be allowed to discontinue the use of this medication during trial, in order to show jurors his true mental state at the time of the offense since he was raising an insanity defense. His motion was denied and he was convicted of murder and sentenced to death. The U.S. Supreme Court

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reversed his conviction, holding that his rights were violated. Specifically, the Court found that the trial court failed to establish the need for and medical appropriateness of the medication. In addition, the Court also addressed the issue of whether the involuntary use of antipsychotic medications may affect the trial’s outcome (see p. 127). The U.S. Supreme Court further specified the criteria to determine whether forced medication is permissible in the case of Sell v. United States (2003). In Sell the Supreme Court held that antipsychotic drugs could be administered against the defendant’s will for the purpose of restoring competency, but only in limited circumstances. Writing for the majority, Justice Breyer noted that involuntary medication of incompetent defendants should be rare, and identified several factors that a court must consider in determining whether a defendant can be forced to take medication, including whether important governmental interests are at stake; whether forced medication will significantly further those interests (i.e., the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to interfere significantly with the defendant’s ability to assist counsel); whether involuntary medication is necessary to further those interests (i.e., alternative, less intrusive treatments are unlikely to achieve substantially the same results); and whether administering drugs is medically appropriate (see p. 167). F O R E N S I C M E N TA L H E A LT H C O N C E P T S Evaluation of a defendant’s psychological functioning is an essential component of the assessment of competency. Though not clearly specified in the Dusky decision, most state laws require that a finding of incompetence be based on the presence of a mental disorder. Once the presence of mental disease or defect has been established, the following must ensue: (1) evaluation of relevant functional abilities and deficits; (2) determination of a causal connection between any noted deficits and mental disorder; and (3) specification of how these deficits may have an impact upon functioning at trial. Mental Illness as a Prerequisite for Incompetence Determination of serious mental disorder, cognitive deficit, or mental retardation is merely the first step in finding a defendant incompetent to stand trial.

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As Zapf, Skeem, and Golding (2005) noted, “the presence of cognitive disability or mental disorder is merely a threshold issue that must be established to ‘get one’s foot in the competency door’ ” (p. 433). Although evaluators a few decades ago appeared to base competency decisions largely on a finding of psychosis or mental retardation (see Roesch & Golding, 1980, for a review), it is now recognized that the presence of a diagnosis, even severe mental disorder, is not by itself sufficient to find a defendant incompetent. Psychosis is significantly correlated with a finding of incompetence; that is, a majority of incompetent defendants are diagnosed with some form of psychosis (mental retardation and organic brain disorders account for most of the remaining diagnoses). However, only about half of evaluated defendants with psychosis are found incompetent (Nicholson & Kugler, 1991), a clear indication that incompetence is not equated with psychosis. Rather, it is necessary for the evaluator to delineate a clear link (causal connection) between a defendant’s mental impairments and his ability to participate in legal proceedings. This is referred to as a functional assessment of competency. Before turning to a discussion of functional assessment, it is important to note that a defendant may have clearly demonstrable pathology, but the symptoms or observable features may be irrelevant to the issue of competency. Such features would include depersonalization, derealization, suicidal ideation, and poor insight. Even a person who meets civil commitment criteria may be considered competent to stand trial, although there does appear to be a strong relationship between incompetence and commitability. For the most part, evaluators will need to determine that the level of mental disorder is severe enough to affect a defendant’s ability to proceed with trial. A diagnosis is useful in this regard, but more attention should be paid to symptoms rather than broad diagnostic categories. Many incompetent defendants have a diagnosis of schizophrenia, for example, but it is the specific symptoms that will be relevant to the competency evaluation. It is most helpful to evaluators if legal counsel is able to provide information regarding the types of symptoms (behaviors, observations) that appear to impair or limit his or her discussions or interactions with the defendant. Any observations regarding the defendant and his or her demeanor, thoughts, actions, or behaviors should be passed along to the evaluator. Although relevant symptoms can vary

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Evaluation of Competence to Stand Trial in Adults widely, there are a few that tend to be more prevalent in incompetent defendants. These include formal thought disorder (as indicated by disorganized speech, loose associations, tangentiality, incoherence, or word salad); concentration deficits; rate of thinking (abrupt and rapid changes in speech or profound slowing of thought or speech); delusions (strongly held irrational beliefs that are not based in reality); hallucinations (sensory perceptions in the absence of a stimulus); memory deficits; and mental retardation or intellectual or developmental disability. Psycholegal/CompetenceRelated Abilities A review of competency case law (including Dusky, Drope, Wieter, Godinez, Edwards, and other relevant cases), legal commentary (such as Bonnie’s reconceptualization of the construct of competence, 1992, 1993), and the available body of literature on competency evaluation and research indicates a number of psycholegal abilities relevant to the issue of competence. These include understanding, appreciation, reasoning, consulting with counsel, assisting in one’s defense, and decision-making abilities. Each of these areas will be an important and relevant area of focus for an evaluation of competency. Understanding Within the context of competence to stand trial, factual understanding generally encompasses the ability to comprehend general information about the arrest process and courtroom proceedings. The defendant’s factual understanding of the legal process includes a basic knowledge of legal strategies and options, although not necessarily as applied to the defendant’s own particular case (case-specific understanding usually is encompassed by appreciation [rational understanding]; see next section). Thus, the competence-related ability to understand involves the defendant’s ability to factually understand general, legally relevant information. Appreciation Appreciation generally refers to a defendant’s rational understanding and encompasses specific knowledge regarding and accurate perception of information relevant to the role of the defendant in his or her own case. Within the context of competence to stand trial, appreciation encompasses the ability to comprehend and accurately perceive specific information regarding how the arrest and

courtroom processes have affected or will affect the defendant. The defendant’s appraisal of the situation must be reality-based, and any decisions that he or she makes about the case must be made on the basis of reality-based information. Thus, the competence-related ability to appreciate involves the application of information that the defendant factually understands to the specific case in a rational (i.e., reality-based) manner. Reasoning Reasoning generally refers to a defendant’s ability to consider and weigh relevant pieces of information in a rational manner in arriving at a decision or a conclusion. To demonstrate appropriate reasoning ability the defendant must be able to communicate in a coherent manner and make decisions in a rational, reality-based manner undistorted by pathology. It is important to distinguish between the outcome of a decision and the process by which the decision is made. What is important is not the outcome of the decision but that the defendant be able to use appropriate reasoning processes—weighing, comparing, and evaluating information—in a rational manner. In the case of a defendant who is proceeding with the assistance of an attorney, reasoning encompasses the ability of the defendant to consult with counsel and to make rational decisions regarding various aspects of participation in his or her defense. Consulting and Assisting Although the Dusky standard indicates that the defendant must be able to “consult with his lawyer,” the U.S. Supreme Court in Drope v. Missouri (1974) used the terminology “assist in preparing his defense” and the Federal standard (U.S. Code Annotated, Title 18, Part III, chapter 13, section 4241) indicates that the defendant must be able to “assist properly in his defense.” Thus, the defendant’s ability to consult with and assist counsel must be considered as part of the competency assessment. The defendant must be able to engage with counsel in a rational manner; thus, effectively assisting counsel requires that the defendant be able to communicate coherently and reason. Decision Making Closely tied to the abilities to appreciate, reason, and assist counsel is the ability to make decisions. The U.S. Supreme Court decision in Cooper v. Oklahoma (1996) appeared to equate a defendant’s

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inability to communicate with counsel with incapacity to make fundamental decisions. In addition, the Supreme Court in Godinez incorporated decisionmaking abilities about the case into the standard for competence. Thus, a defendant’s decision-making abilities with respect to specific, contextually relevant aspects of the case need be considered in the trial competency evaluation. It is important to note that research examining the content of competency evaluation reports has shown that certain abilities important and relevant to competence to stand trial, such as decision-making abilities, have rarely been addressed by evaluators in their reports (LaFortune & Nicholson, 1995; Skeem, Golding, Cohn, & Berge, 1998). Thus, legal counsel should ensure that competency evaluators are including this information in their evaluation reports. Functional and Contextual Nature of Competency and its Evaluation A functional assessment dictates that competency to stand trial cannot simply be assessed in the abstract, independent of contextual factors. Thus, an evaluation of contextual factors should always take place. This is the essence of a functional approach to assessing competence, which posits that the abilities required by the defendant in his or her specific case should be taken into account when assessing competence. The open-textured, context-dependent nature of the construct of competency to stand trial was summarized by Golding and Roesch (1988): Mere presence of severe disturbance (a psychopathological criterion) is only a threshold issue—it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome. (p. 79)

The importance of a person–context interaction has also been highlighted by Grisso (2003), who defined a functional assessment in the following manner: A decision about legal competence is in part a statement about congruency or incongruency

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between (a) the extent of a person’s functional ability and (b) the degree of performance demand that is made by the specific instance of the context in that case. Thus an interaction between individual ability and situational demand, not an absolute level of ability, is of special significance for competence decisions. (pp. 32–33)

Obviously, a functional assessment requires evaluators to learn about what may be required of a particular defendant. Some of this information may be provided by the defendant but other information will need to come from court documents and from the defendant’s legal counsel. Some cases are more complex than others and may, as a result, require different types of psycholegal abilities. As Rogers and Mitchell (1991) note, the requisite level of understanding for a complex crime is higher than for a less complex one. Thus, it may be that the same defendant is competent for one type of legal proceeding but not for others. In cases in which a trial is likely, a defendant’s demeanor in court and the ability to testify will certainly be of relevance. A defendant who is likely to withdraw into a catatonic-like state if required to testify, or one who may appear to jurors as not caring or not paying attention to the trial due to medication side effects, may not be capable of proceeding. But these same defendants may be able to proceed if the attorney intends to plea bargain. Unfortunately, research has indicated that evaluators often fail to relate specific abilities and deficits to the particular case (Heilbrun & Collins, 1995) and that they often fail to provide a discussion of the link between symptomatology and legal abilities in their evaluation reports (Skeem et al., 1998). Legal counsel should expect an evaluator to ask for detailed information regarding those abilities that will be required of the particular defendant in the particular case so as to guide their competencyrelated inquiries. In addition, legal counsel should expect that evaluators might ask to observe their interactions with the defendant so as to truly perform a functional evaluation of the defendant’s ability to relate to counsel, communicate with counsel, and participate in his or her own defense. If these requests do not occur, legal counsel should feel comfortable in raising these issues with the evaluator so as to ensure that a contextual and functional evaluation, in line with current best practices, is conducted.

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Evaluation of Competence to Stand Trial in Adults E M P I R I C A L F O U N D AT I O N S AND LIMITS Prior to 1980, research on competency to stand trial was limited; however, the past few decades have witnessed a surge in research on this issue and there currently exists a robust literature in this area. In addition to research on various aspects of competency, structured and semi-structured instruments for assessing competency to stand trial have been developed. A review of this literature is well beyond the scope of this chapter, but this section will highlight those areas in which a literature base exists and attempt to provide a representative sample of the findings. More detailed information about all aspects of this section can be found in Zapf and Roesch (2009). Research on Adjudicative Competence The available research on adjudicative competence has mainly focused on procedural and assessment issues, the characteristics of referred and incompetent populations, the reliability and validity of competency evaluation, and the development and validation of instruments for the evaluation of competency. In addition, a limited but growing literature is developing on the restoration of competence. We will attempt to highlight representative findings in each of these areas. Procedural Issues Poythress and colleagues (2002) reported a series of studies of defense attorneys in several jurisdictions who responded to questions about their perceptions of the competence of their clients. These researchers found that the lawyers had concerns about the competency of their clients in 8% to 15% of the cases; however, competency evaluations were requested in less than half of these cases (in some of those cases where competency evaluations were not requested, the attorney tried to resolve the concerns through informal means, such as including a family member in the decision-making process). Poythress and colleagues noted that the attorneys indicated that their concerns were based on the functional abilities of the clients, such as communicating facts and decision-making capacity. Reasons other than a concern about a defendant’s competency may at least partially account for the consistent finding that only a small percentage of defendants referred for competency evaluations are found incompetent. Roesch and Golding (1980) reported on 10 studies conducted prior to

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1980 and found an average incompetency rate of 30%. They also noted a considerable range of rates, with some jurisdictions finding almost no referred defendants to be incompetent while others reported rates as high as 77%. A recent meta-analysis of 68 studies found the rate of incompetence to be 27.5% (Pirelli, Gottdiener, & Zapf, 2011). Characteristics of Referred and Incompetent Defendants A vast amount of the competency research has examined the characteristics of both referred individuals as well as those found incompetent. Defendants referred for competency evaluations are often marginalized individuals with extensive criminal and mental health histories. Research has indicated that the majority of these defendants tend to be male, single, unemployed, with prior criminal histories, prior contact with mental health services, and past psychiatric hospitalizations. Viljoen and Zapf (2002) compared 80 defendants referred for competency evaluation with 80 defendants not referred and found that referred defendants were significantly more likely to meet diagnostic criteria for a current psychotic disorder, to be charged with a violent offense, and to demonstrate impaired legal abilities. In addition, referred defendants were less likely to have had previous criminal charges. Notably, approximately 25% of non-referred defendants demonstrated impairment on competence-related abilities. In addition, approximately 20% of referred defendants either did not meet criteria for a mental disorder or demonstrated no impairment of competence-related abilities. With respect to the characteristics of defendants found incompetent, a recent meta-analysis found that unemployed defendants were twice as likely to be found incompetent as those who are employed and those diagnosed with a psychotic disorder were approximately eight times more likely to be found incompetent as those without such a diagnosis (Pirelli et al., 2011). Reliability and Validity of the Evaluation Process Since evaluators are assessing a defendant’s present ability to perform a series of relatively clearly defined tasks, it seems reasonable to expect that competency evaluations would be highly reliable. In fact, this is precisely what the numerous studies on reliability have shown, with agreement about

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the ultimate opinion regarding competency being reported in the 90% range (Golding et al., 1984; Rosenfeld & Ritchie, 1998; Skeem et al., 1998). However, a reliable system of evaluation is not necessarily a valid one. For example, at one time it was the case that evaluators equated psychosis with incompetency (Roesch & Golding, 1980). Thus, if clinicians agreed that a defendant was psychotic they would also agree that the defendant was incompetent. As noted in this chapter, while psychosis is highly correlated with incompetency, it is also the case that a large percentage of competent defendants experience psychotic symptoms. The view that psychosis and incompetency are not inextricably entwined has changed as evaluators have become better trained and more research is available to guide decisions. The problem of evaluating validity is that there is no gold standard for competence against which to compare evaluator decisions/opinions. Relying on court decisions is not particularly helpful since agreement rates between evaluator recommendations and court determinations have been shown to be well over 90% (Cox & Zapf, 2004; Cruise & Rogers, 1998; Hart & Hare, 1992). How, then, can the issue of construct validity be assessed? Golding and colleagues (1984) suggested the use of a panel of experts, referred to as a “blue ribbon panel,” to serve as an independent criterion. In their study, they asked two experts to make judgments about competency based on a review of records, reports from hospital evaluators, and evaluations using the Interdisciplinary Fitness Interview (IFI). Golding and colleagues found that “for the 17 cases seen by the blue-ribbon panelists, they agreed with the IFI panelists 88% of the time, with the hospital staff 82% of the time, and with the courts 88% of the time” and they concluded that “on the basis of these data it would be hard to argue for one criterion definition over another” (p. 331). The aforementioned study illustrates the methodological problems inherent in studies of competency evaluations, particularly in terms of the lack of a “correct” outcome against which to compare different methods of decision making. We are left with the reality that there can be no hard criterion against which to test the validity of competency evaluations because we do not have a test of how incompetent defendants would perform in the actual criterion situations. Since incompetent defendants are not allowed to go to trial until

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competency is restored, there is no test of whether a defendant found incompetent truly would have been unable to proceed with a trial or other judicial proceedings. Short of the provisional trial, the ultimate test of validity will never be possible. Restoration of Competence Empirical research on competency restoration indicates that most defendants are restorable: Nicholson and McNulty (1992) reported a restoration rate of 95% after an average of two months; Nicholson, Barnard, Robbins, and Hankins (1994) reported a rate of 90% after an average of 280 days; Cuneo and Brelje (1984) reported a restoration rate of 74% within one year; and Carbonell, Heilbrun, and Friedman (1992) reported a rate of about 62% after three months. Thus, regardless of the upper time limits on competency restoration allowed by state statute, it is now the case that most incompetent defendants are returned to court as competent within six months (Bennett & Kish, 1990; Nicholson & McNulty, 1992; Pinals, 2005; Poythress et al., 2002) and the vast majority of incompetent defendants are restored to competency within a year. Research has also examined the issue of nonrestorability. Mossman (2007) found that individuals with a longstanding psychotic disorder with lengthy periods of prior psychiatric hospitalizations, or irremediable cognitive deficits such as mental retardation, were well below average in terms of their chances of restoration. The most common form of treatment for the restoration of competence involves the administration of psychotropic medication. Some jurisdictions have also established educational treatment programs designed to increase a defendant’s understanding of the legal process or individualized treatment programs that confront the problems that hinder a defendant’s ability to participate in his or her defense (Bertman et al., 2003; Davis, 1985; Siegel & Elwork, 1990). In addition, some jurisdictions have implemented treatment programs specifically targeted towards those defendants with mental retardation who are found incompetent to proceed. The success of treatment programs for the restoration of competence is variable and dependent upon the nature of the treatment program and the type of defendant targeted. Anderson and Hewitt (2002) examined treatment programs designed to restore competency in defendants with mental retardation and found that only 18% of their

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Evaluation of Competence to Stand Trial in Adults sample was restored. Treatment programs that target defendants with various other types of mental disorders have met with more success in that larger proportions of the defendants are restored to competency; however, it is not clear that individualized treatment programs that target specific underlying deficits for each defendant are any more effective than educational programs that teach defendants about their legal rights (Bertman et al., 2003). What appears to be accurate is that successful restoration is related to how well the defendant responds to psychotropic medications administered to alleviate those symptoms of the mental disorder that initially impaired those functional abilities associated with trial competency (Zapf & Roesch, 2011). Competency Assessment Instruments Prior to the 1960s no forensic assessment instruments (a term coined by Grisso in 1986) existed to assist experts in the evaluation of various legal issues. Trial competency was the first area for which forensic assessment instruments were developed. The evolution of forensic assessment instruments for the evaluation of competency has gone from early checklists (e.g., Robey, 1965) and sentencecompletion tasks (e.g., Lipsitt, Lelos, & McGarry, 1971) to self-report questionnaires (e.g., Barnard et al., 1991) to interview-based instruments without, and then with, criterion-based scoring. Suffice it to say, this is a large area of research and the interested reader should consult the following resources for more information: Grisso (2003); Melton, Petrila, Poythress, and Slobogin (2007); Zapf and Roesch (2009); and Zapf and Viljoen (2003). Three instruments show a great deal of promise in terms of their utility in the evaluation of competency to stand trial: the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA; Poythress, et al., 1999), the Evaluation of Competency to Stand Trial—Revised (ECST-R; Rogers, Tillbrook, & Sewell, 2004), and the Fitness Interview Test—Revised (FIT-R; Roesch, Zapf, & Eaves, 2006). Each of these instruments can be used to assist in the evaluation of a defendant’s competency status and each has its strengths and weaknesses. All three of these instruments show evidence of sound psychometric properties. The MacCAT-CA uses standardized administration and criterion-based scoring, which increases its reliability and provides scores on three competence-related abilities—understanding, reasoning,

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and appreciation—that can be compared to a normative group of defendants. The methodology used, however, involves a vignette format that limits the ability to extrapolate to a defendant’s own particular case. The ECST-R uses a hybrid interview approach, containing both semi-structured and structured components, designed to assess competency to stand trial generally as well as specific competencies such as competency to plead and competency to proceed pro se. The ECST-R yields scores in four different areas—rational understanding, factual understanding, consulting with counsel, and overall rational ability—and also includes scales that screen for feigned incompetency. Like the MacCAT-CA, the ECST-R is a normreferenced instrument, which means that the scores obtained by a particular defendant can be compared to a normative group of defendants to provide an indication of how this particular defendant compares to other defendants on the various abilities measured. The structured approach of these two instruments limits the types of questions that can be asked of a particular defendant (of course, the evaluator should ask about all relevant contextual issues in addition to administering either the MacCAT-CA or the ECST-R). The FIT-R provides an interview guide for assessing the relevant competency-related issues in three different areas—factual understanding, rational understanding (appreciation), and consulting/decision making. Its semi-structured format allows for broad discretion in the types of inquiries made so all contextual elements can be evaluated for each defendant. T H E E VA L UAT I O N Selecting an Evaluator Legal counsel able to select and retain forensic evaluators of their choice (as opposed to having them court-ordered) will want to consider the potential evaluator’s knowledge, training, and education as well as his or her skill set and experience. The evaluation will typically consist of three elements—an interview, testing, and collateral information review—and so legal counsel may wish to inquire with potential experts regarding the methods they use for conducting competency evaluations, the instruments that they typically use (if any), their experience with competency evaluation in general, as well as their experience in the relevant jurisdiction.

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Defense Counsel’s Role in the Evaluator’s Preparation There are four ways in which defense counsel will play a role in the competency evaluator’s preparation and evaluation. First, defense counsel should expect the competency evaluator to clarify the referral question. This is one of the first tasks that an evaluator should complete and so it will require a conversation with the referring party (which we assume to be the defense counsel since this is the most common referral source) about the basis for the referral. The evaluator will want to know what defense counsel has observed about his or her interactions and conversations with the defendant, whether the defendant has displayed any odd or unusual behaviors or beliefs, whether the defendant has been communicative with counsel, whether the defendant holds any animosity or mistrust for defense counsel, and the extent of the defendant’s understanding of his or her charges as displayed to defense counsel. In addition, defense counsel should be prepared to provide information regarding why the referral for competency evaluation was requested. Aside from information needed to clarify the referral question, evaluators will also look to defense counsel for specific information regarding the defendant’s current charges and allegations. Providing information to the evaluator about the formal charges as well as a police report or some other report regarding the allegations for those charges will be an important initial step in assisting the evaluator in his or her preparation. Along with this, the evaluator will require information about the nature of the dispositions that the defendant might face in light of any previous criminal history, the likelihood of the defendant begin acquitted or convicted, and the likelihood of a plea deal being offered. This information will assist the evaluator in determining whether the defendant is able to provide a realistic view of his or her case and the possible outcomes. In addition, current best practices for competency evaluation require that the evaluator be able to assess the degree of congruence or incongruence between the defendant’s capacities and the abilities required of him or her at trial (or for his or her relevant adjudicative proceedings). Thus, in order to do so, the evaluator must collect information regarding what will be required of the defendant for his or her proceedings. Defense counsel should expect the evaluator to ask a series of questions or obtain information using a standardized questionnaire regarding whether the defendant

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will be expected to make a decision regarding a plea bargain; whether evidence against the defendant is such that mounting a defense will depend largely on the defendant’s ability to provide information (or whether there are additional information sources, aside from the defendant, that can be used); whether the case will involve a number of adverse witnesses; whether the defendant will be required to testify; whether the adjudication process will be lengthy; whether the adjudication hearing will be lengthy; and whether the adjudication hearing will be complex (i.e., difficult to follow, complicated evidence). Any information that the defense counsel can provide to the evaluator regarding the abilities that will be required of the defendant will assist in guiding the evaluation process. The third way in which defense counsel will play a role in the evaluation process is by assisting the evaluator in obtaining relevant collateral records and information. Every competency evaluation requires that the evaluator review collateral information and/or interview collateral information sources to determine the weight to be given to the defendant’s self-report. Competency evaluators are expected to go through legal counsel to obtain this information so as to meet the relevant requirements for discovery and attorney work product. Even in those situations where records are to be released directly to a mental health professional (as is sometimes the case with psychological test results), the initial request for information should be funneled through the defense attorney (the mental health professional can provide a release-of-information form to be signed by the defendant and used by the attorney to obtain the relevant documents). Finally, the evaluator may request that he or she be allowed the opportunity to observe interactions between the defendant and defense counsel. This is to satisfy the functional component of competency evaluation whereby direct observation of the defendant and defense attorney engaging in discussion of the defendant’s charges or defense strategy allows for a direct assessment of the defendant’s abilities in this regard. Defense counsel can, of course, decide whether he or she will grant this request, but direct observation of these interactions will assist the evaluator in extrapolating to the trial context. Of note here is that information about the specific content of these discussions would be left out of the evaluation report; rather, observations regarding the process is the focus of these interactions.

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Evaluation of Competence to Stand Trial in Adults The Goal of the Evaluation The goal of the evaluation is for the evaluator to assess the degree of congruence or incongruence between the defendant’s capacities and the abilities required of the defendant at trial (or his or her proceedings). To do this, the evaluator will assess the defendant’s current mental status and his or her competence-related capacities (i.e., understanding, appreciation, reasoning, assisting/consulting, and decision making) within the specific context of the defendant’s case (thus including any relevant abilities that will be required of the defendant for his or her proceedings); determine whether the cause of any noted deficits is a result of mental illness or cognitive impairment; and specify how the defendant’s mental illness or cognitive symptoms may interact or interfere with his or her competencerelated abilities by describing how this may present at trial. In addition, the evaluator should delineate the ways in which the court or defense counsel can assist the defendant in his or her functioning at trial (i.e., providing prescriptive remediation such as instruction regarding how best to work with the client to improve his or her functioning). Finally, many jurisdictions require the evaluator to include information regarding the likelihood and length of restoration and treatment recommendations for those defendants who appear to be incompetent. The evaluator will use the data gathered through the evaluation process (interview, testing, and collateral information review) to arrive at a conclusion regarding the defendant’s competency status; however, many evaluators believe that it is beyond their role to explicitly state their opinion regarding the defendant’s competency status. That is, many evaluators are hesitant to speak to the ultimate legal issue, believing instead that this is for the court to determine. While the ultimate legal issue (competency status) is certainly a legal issue for the court to decide, counsel who desire the evaluator to provide an ultimate opinion should feel comfortable in making this request of the evaluator. Many evaluators will not provide such opinions unless explicitly asked or statutorily required to do so. REPORT WRITING AND TESTIMONY Court-ordered evaluators are required to complete a written report of their evaluation along with their opinions regarding the defendant’s mental status and competence-related abilities. In most

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jurisdictions these written reports will be distributed to the prosecution and the defense as well as the court. In situations where the evaluator has been privately retained, however, there is no requirement for a written report and so the determination of whether a written report is to be provided is left with defense counsel. In these situations, the evaluator is expected to provide an oral report of his or her findings and opinions to defense counsel and await further instruction from counsel as to whether a written report is desired. Regardless of whether the evaluator was court-ordered or privately retained, the expectation is that the evaluator is an objective, neutral party who will include all relevant information in the written report. If the privately retained evaluator uncovers information that could be damaging or detrimental to the defense, he or she should provide this information to counsel in an oral report. If a written report is requested, it would be unethical for the evaluator to leave out relevant information not favorable to the defense. Report Contents Although there are numerous different ways to organize a forensic evaluation report, any competency evaluation report should contain the following types of information: relevant case and referral information; a description of the notification of rights provided to the defendant; a summary of the alleged offense (this should be from official documents and not the defendant’s self-report); the data sources that were used or reviewed for the purposes of the evaluation (including any collateral interviews and the dates on which they occurred); background information on the defendant (typically a social history); a clinical assessment of the defendant (typically this will include a mental status exam as well as any relevant information or observations about the defendant’s mental health and functioning); a forensic assessment of the defendant (with all relevant information regarding the defendant’s competence-related abilities and/or deficits); and a summary and recommendations section (including any prescriptive remediation or information regarding treatment recommendations). Forensic Evaluation The forensic evaluation component of the written report is perhaps the most relevant and important to legal counsel and the court. This section of the

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report should include a description of the defendant’s competence-related abilities and deficits; the cause for any noted deficits; the impact of symptoms on the defendant’s performance or participation in the case; possible prescriptive remediation; conclusions or opinions regarding each of the jurisdictional criteria; and the prognosis for restorability. The best forensic evaluation reports are those that explicitly delineate the linkage between the defendant’s mental illness or cognitive impairment and any noted competence-related deficits as well as describe how these deficits might affect the defendant’s functioning at trial. For example, it would not be enough to simply state that the defendant has delusional disorder and therefore is unable to rationally understand (appreciate) his or her role as a defendant. Instead, the evaluator should clearly delineate the necessary linkages for the court and describe how these might affect the defendant’s functioning at trial. For example, the defendant displays a fixed delusional belief system whereby he believes that his father “owns” all of the judges in the State and therefore no judge in the State would ever convict him. This delusion compromises the defendant’s ability to make rational decisions regarding his defense. In addition to a clear delineation of the linkage between any mental illness or cognitive deficit and any noted deficits in competence-related abilities and a description of how these could affect the defendant’s functioning at trial or in various relevant proceedings, the report should also include some form of prescriptive remediation for any noted deficits. For example, the evaluator might indicate that the defendant demonstrates lower cognitive functioning, which might affect his ability to fully understand and engage in his defense strategy, and then indicate that the defendant’s understanding might be improved by using concrete, as opposed to abstract, examples and by using shorter sentences with smaller words. Most jurisdictions require that the evaluator include additional information in the report for those defendants opined incompetent. This additional information typically includes the cause of the incompetence, the probability and estimated length of restoration, and treatment recommendations for restoration. Evaluators are expected to understand and abide by the various jurisdictional requirements for competency evaluation reports; however, legal professionals should be aware that

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some research has indicated that not all evaluation reports include these statutorily required elements (Zapf et al., 2004). Legal consumers should not hesitate to bring any missing elements to the attention of the evaluator. Inappropriate Report Contents Two types of content are not appropriate for inclusion in a competency evaluation report. The first is the defendant’s version of the circumstances surrounding the offense. A functional evaluation of competency requires that the evaluator inquire about the charges and allegations; however, evaluators are expected to exercise caution when writing the evaluation report so as not to include potentially incriminating information provided by the defendant. General statements regarding whether the defendant’s account of events differs substantially from official accounts and whether this reflects an incapacity or deficit on the part of the defendant should be used instead of a summary of the defendant’ s account or the defendant’s verbatim answers. Similarly, the content of observed interactions and/ or discussions between defense counsel and the defendant is not appropriate for inclusion in the written report; rather, a description of the process of these interactions is what should be highlighted. The second type of inappropriate report content involves the inclusion of information or opinions related to other legal issues. Evaluators should be careful to address only those referral questions that have been asked and to refrain from offering unsolicited information about other, possibly relevant, legal issues in the competency evaluation report. Opinions or conclusions regarding a defendant’s future risk for violent behavior, or any other legal or psychological issue, have no place in a competency evaluation report. In many jurisdictions, competency evaluations and assessments of mental state at the time of the offense are often ordered simultaneously. In this situation, the evaluator may choose to prepare a separate report for each referral question or to address both referral questions within the same report. Legal consumers desiring two separate reports in this instance should make this clear to the evaluator. Importance of Providing the Bases for the Opinion/Conclusions The importance of delineating the linkages between mental illness, competence-related deficits, and functional abilities at trial (or for the purposes of

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Evaluation of Competence to Stand Trial in Adults the defendant’s proceedings) has been highlighted throughout this chapter but with good reason. In a survey of forensic diplomates of the American Board of Forensic Psychology (ABPP), Borum and Grisso (1996) found that 90% of respondents agreed that detailing the link between mental illness and competence-related deficits in competency reports was either recommended or essential. However, an examination of competency-to-stand-trial reports from two states indicated that only 27% of the reports provided an explanation regarding how the defendant’s mental illness influenced his or her competence-related abilities (Robbins, Waters, & Herbert, 1997). Further, in another study, only 10% of competency-evaluation reports reviewed provided an explanation regarding how the defendant’s psychopathology compromised required competence-related abilities (Skeem et al., 1998). In addition to the issue of the linkage between mental illness and competence-related deficits, the extant research also indicates that examiners rarely (Skeem et al.) or never (Robbins et al.) assess the congruence between a defendant’s abilities and the specific case context. Thus, legal consumers should be aware of the necessity for evaluators to provide the bases for their opinions and conclusions through clear indication of these linkages in the written report. Testimony In the majority of cases where the issue of competency is raised, a legal determination is made without a competency hearing (both parties typically stipulate to the evaluator’s report). When a competency hearing is necessary, the forensic evaluator(s) will be called to testify about the evaluation. If the evaluator was privately retained, as opposed to court-ordered, it is helpful for the defense attorney to conduct a pretrial conference to inform the evaluator about relevant issues, such as the theory of the case, how the attorney would like the evaluator’s testimony presented, and any relevant information about what the opposing side may try to prove. During this conference (if not before), the evaluator should inform the retaining attorney about any possible weaknesses in his or her evaluation methods, opinions, or conclusions as well as any possible weaknesses with the opposing side’s opinion (if known). It is helpful to the evaluator if defense counsel also share issues that may be subject to scrutiny or become the focus of

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cross-examination. In complex or high-profile cases the legal defense team may wish to ask the evaluator practice questions (both direct and cross-examination) to assist in preparing the evaluator for his or her testimony. The evaluator should have provided a copy of his or her curriculum vitae to defense counsel (when privately retained) or the court (for courtordered evaluations) prior to the day of the competency hearing, but he or she should also come prepared to testify with multiple copies of his or her CV. In cases where the evaluator was privately retained, the defense team may wish to go over the evaluator’s CV with the evaluator ahead of time so the evaluator can highlight relevant experiences and qualifications to smooth the process of becoming qualified as an expert. Regardless of whether the expert was courtordered or privately retained, he or she is required to remain objective and neutral and to answer all questions in a straightforward manner. The evaluator should be well prepared to take the stand, having reviewed all relevant materials to the competency evaluation in addition to his or her written report. S U M M A RY The purpose of this chapter was to present material relevant to legal consumers regarding the evaluation of competency to stand trial (adjudicative competence). The interested reader is directed to additional resources for further discussion of the information contained within this short chapter, including Grisso (2003); Melton, Petrila, Poythress, and Slobogin (2007); Pirelli, Gottdiener, and Zapf (2011); and Zapf and Roesch (2009). REFERENCES American Bar Association (1989). ABA criminal justice mental health standards. Washington, DC: Author. Anderson, S. D., & Hewitt, J. (2002). The effect of competency restoration training on defendants with mental retardation found not competent to proceed. Law and Human Behavior, 26, 343–351. Barnard, G. W., Thompson, J. W., Freeman, W. C., Robbins, L., Gies, D., & Hankins, G.(1991). Competency to stand trial: Description and initial evaluation of a new computer-assisted assessment tool (CADCOMP). Bulletin of the American Academy of Psychiatry and the Law, 19, 367–381. Bennett, G., & Kish, G. (1990). Incompetency to stand trial: Treatment unaffected by demographic variables. Journal of Forensic Sciences, 35, 403–412.

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Bertman, L. J., Thompson, J. W., Jr., Waters, W. F., Estupinan-Kane, L., Martin, J. A., & Russell, L. (2003). Effect of an individualized treatment protocol on restoration of competency in pretrial forensic inpatients. Journal of the American Academy of Psychiatry and Law, 31, 27–35. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. Bonnie, R. J. (1993). The competence of criminal defendants: beyond Dusky and Drope. Miami Law Review, 47, 539–601. Borum, R., & Grisso, T. (1996). Establishing standards for criminal forensic reports: An empirical analysis. Bulletin of the American Academy of Psychiatry and the Law, 24, 297–317. Carbonell, J., Heilbrun, K., & Friedman, F. (1992). Predicting who will regain trial competence: Initial promise unfulfilled. Forensic Reports, 5, 67–76. Cooper v. Oklahoma, 116 S. Ct. 1373 (1996). Cox, M. L., & Zapf, P. A. (2004). An investigation of discrepancies between mental health professionals and the courts in decisions about competency. Law and Psychology Review, 28, 109–132. Cruise, K. R., & Rogers, R. (1998). An analysis of competency to stand trial: An integration of case law and clinical knowledge. Behavioral Sciences and the Law, 16, 35–50. Cuneo, D., & Brelje, T. (1984). Predicting probability of attaining fitness to stand trial. Psychological Reports, 55, 35–39. Davis, D. L. (1985). Treatment planning for the patient who is incompetent to stand trial. Hospital and Community Psychiatry, 36, 268–271. Drope v. Missouri, 420 U. S. 162 (1975). Dusky v. United States, 362 U.S. 402 (1960). Godinez v. Moran, 113 S. Ct. 2680 (1993). Golding, S. L., & Roesch, R. (1988). Competency for adjudication: An international analysis. In D. N. Weisstub (Ed.), Law and mental health: International perspectives (Vol. 4, pp. 73–109). Elmsford, NY: Pergamon Press. Golding, S. L., Roesch, R., & Schreiber, J. (1984). Assessment and conceptualization of competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Law and Human Behavior, 8, 321–334. Grisso, T. (2003). Evaluating competencies: Forensic assessment and instruments (2nd ed.). New York: Kluwer Academic/Plenum Publishers. Group for the Advancement of Psychiatry. (1974). Misuse of psychiatry in the criminal courts: Competency to stand trial. New York: Mental Health Materials Center. Hart, S. D., & Hare, R. D. (1992). Predicting fitness for trial: The relative power of demographic, criminal and clinical variables. Forensic Reports, 5, 53–54.

Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at time of offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61–67. Indiana v. Edwards, 554 U.S. 164 (2008). Jackson v. Indiana, 406 U. S. 715 (1972). LaFortune, K., & Nicholson, R. (1995). How adequate are Oklahoma’s mental health evaluations for determining competency in criminal proceedings? The bench and bar respond. Journal of Psychiatry and Law, 23, 231–262. Lipsitt, P., Lelos, D., & McGarry, A. L. (1971). Competency for trial: A screening instrument. American Journal of Psychiatry, 128, 105–109. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford. Morris, G. H., Haroun, A. M., & Naimark, D. (2004). Assessing competency competently: Toward a rational standard for competency-to-stand-trial assessments. Journal of the American Academy of Psychiatry and Law, 32, 231–45. Mossman, D. (2007). Predicting restorability of incompetent criminal defendants. Journal of the American Academy of Psychiatry and the Law, 35, 34–43. Nicholson, R., Barnard, G., Robbins, L., & Hankins, G. (1994). Predicting treatment outcome for incompetent defendants. Bulletin of the American Academy of Psychiatry and the Law, 22, 367–377. Nicholson, R., & McNulty, J. (1992). Outcome of hospitalization for defendants found incompetent to stand trial. Behavioral Sciences and the Law, 10, 371–383. Nicholson, R. A., & Kugler, K. E. (1991). Competent and incompetent criminal defendants: A quantitative review of comparative research. Psychological Bulletin, 109, 355–370. Pate v. Robinson, 383 U. S. 375 (1966). Pinals, D. (2005). Where two roads met: Restoration of competence to stand trial from a clinical perspective. New England Journal of Civil and Criminal Confinement, 31, 81–108. Pirelli, G., Gottdiener, W. H., & Zapf, P. A. (2011). A meta-analytic review of competency to stand trial research. Psychology, Public Policy, and Law, 17, 1–53. Poythress, N. G., Bonnie, R. J., Monahan, J., Otto, R. K., & Hoge, S. K. (2002). Adjudicative competence: The MacArthur studies. New York: Kluwer Academic/ Plenum. Poythress, N. G., Nicholson, R. A., Otto, R. K., Edens, J. F., Bonnie, R. J., Monahan, J., & Hoge, S. K. (1999). The MacArthur Competence Assessment Tool—Criminal Adjudication. Odessa, FL: Psychological Assessment Resources. Riggins v. Nevada, 504 U. S. 127 (1992).

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Evaluation of Competence to Stand Trial in Adults Robbins, E., Waters, J., & Herbert, P. (1997). Competency to stand trial evaluations: A study of actual practice in two states. Journal of the American Academy of Psychiatry and Law, 25, 469–483. Robey, A. (1965). Criteria for competency to stand trial: A checklist for psychiatrists. American Journal of Psychiatry, 122, 616–623. Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Chicago, IL: University of Illinois Press. Roesch, R. Zapf, P. A., & Eaves, D. (2006). Fitness Interview Test—Revised: A structured interview for assessing competency to stand trial. Sarasota, FL: Professional Resource Press. Rogers, R., & Mitchell, C. N. (1991). Mental health experts and the criminal courts: A handbook for lawyers and clinicians. Scarborough, ON: Thompson. Rogers, R., Tillbrook, C. E., & Sewell, K. W. (2004). Evaluation of Competency to Stand Trial—Revised professional manual. Lutz, FL: Psychological Assessment Resources. Rosenfeld, B., & Ritchie, K. (1998). Competence to stand trial: Clinical reliability and the role of offense severity. Journal of Forensic Sciences, 43, 151–157. Sell v. United States, 539 U. S 166 (2003). Siegel, A.M., & Elwork, A. (1990). Treating incompetence to stand trial. Law and Human Behavior, 14, 57–65. Skeem, J., Golding, S. L., Cohn, N., & Berge, G. (1998). Logic and reliability of evaluations of competence

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to stand trial. Law and Human Behavior, 22, 519–547. United States v. Duhon, 104 F. Supp. 2d. 663 (2000). Viljoen, J. L., & Zapf, P. A. (2002). Fitness to stand trial evaluations: A comparison of referred and nonreferred defendants. International Journal of Forensic Mental Health, 1, 127–138. Wieter v. Settle, 193 F. Supp. 318 (W.D. Mo. 1961). Wilson v. United States, 391 F. 2d. 460 (1968). Zapf, P. A., Hubbard, K. L., Cooper, V. G., Wheeles, M. C., & Ronan, K. A. (2004). Have the courts abdicated their responsibility for determination of competency to stand trial to clinicians? Journal of Forensic Psychology Practice, 4, 27–44. Zapf, P. A., & Roesch, R. (2009). Best practices in forensic mental health assessment: Evaluation of competence to stand trial. New York: Oxford. Zapf, P. A., & Roesch, R. (2011). Future directions in the restoration of competency to stand trial. Current Directions in Psychological Science, 20, 43–47. Zapf, P. A., Skeem, J. L., & Golding, S. L. (2005). Factor structure and validity of the MacArthur Competence Assessment Tool—Criminal Adjudication. Psychological Assessment, 17, 433–445. Zapf, P. A., & Viljoen, J. L. (2003). Issues and considerations regarding the use of assessment instruments in the evaluation of competency to stand trial. Behavioral Sciences and the Law, 21, 351–367.

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Getting the Most out of Your Expert: Preparing and CrossExamining Experts on Competency and other Mental Health Issues Patricia A. Zapf, PhD Professor, John Jay College of Criminal Justice, CUNY Director of Education & Training, CONCEPT

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Useful Books

Best Practices in Forensic Mental Health Assessment • 20 book series IV - B - 2

Handouts • Pirelli, Gottdiener, & Zapf (2011) Meta-Analytic Review – Summary of CST research to 2011

• Zapf & Roesch (2000) Court Review article – Overview of what to expect in a CST evaluation report

• Zapf & Roesch (2013) Chapter 2 – Handbook for Lawyers – Information about what to expect from your CST expert

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Resources • National Judicial College’s Best Practices Model www.MentalCompetency.org • AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial (2007) – Nice summary of relevant legal cases (before Edwards)

• www.concept-ce.com/virginia

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DECIDING ON AN EXPERT

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Do your Research & Ask Questions • Research your possible experts – Decide whether you will need a clinical-expert, consultantexpert, or both – Consider the reputation of your prospects, ask around – Consider knowledge, training, education, skill set, experience

• Ask about the evaluation process • What tests, if any, do they typically use • What methods do they employ • Work samples

• Ask about understanding and interpretation of relevant statutes – Want breadth and depth of understanding – Should be able to discuss relevant legal cases and how they have impacted competency statutes IV - B - 6

Relevant Case Law - Standards • Dusky v. United States (1960) – Constitutional Minimum

• Wieter v. Settle (1961) – Delineated 8 functional abilities

• Wilson v. United States (1968) – Functional and contextual nature of the inquiry

• Drope v. Missouri (1975) – “assist in preparing his defense”

• Godinez v. Moran (1993) – No higher standard for waiving counsel or pleading guilty; affirms that decision making is part of the competency standard

• Indiana v. Edwards (2008) – Higher standard for proceeding pro se

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1960s/1970s v. 1990s/2000s • In 1960 and 1975 the Court’s basic definition of competence centered on whether the accused had – a combination of situational awareness, and – a basic ability to deal with counsel • In the 1990s/2000s the Court more fully described its view of the ingredients of the necessary interaction between client and lawyer – with “the assistance of counsel, the defendant is also called upon to make myriad smaller decisions [than those discussed in the basic competence definitions] concerning the course of his defense” – Cooper v. Oklahoma

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Current Standards for Competence • U.S. Supreme Court cases from the 1990s/2000s are an important part of the current definition of competence • This becomes clear upon review of secondary sources (ABA National Benchbook) • State courts have acknowledged that controlling case law from the U.S. Supreme Court must guide the review of competence inquiries at the trial level (People v. Jones)

• Philipsborn warns that other sources of standards have not kept up (such as state statutes) • “These statutory definitions exemplify part of the problem— understanding competence to stand trial requires understanding all currently applicable law and is beyond any one basic local statutory source”

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DO NOT RETAIN AS AN “EXPERT” SOMEONE WHO CANNOT SPEAK WITH BOTH BREADTH AND DEPTH ABOUT COMPETENCY ISSUES AND CASE LAW

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THE COMPETENCY EVALUATION

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Best Practices / Professional Standards • Best Practices Series by Oxford – Evaluation of Competence to Stand Trial (2009)

• AAPL Practice Guidelines (2007) • APA Ethical Principles of Psychologists and Code of Conduct (2002, 2010) • Specialty Guidelines for Forensic Psychology (2013) IV - B - 12

Competency Evaluation • Data sources: – Interview – Testing – Collateral information

• Nature: Functional / Contextual • Purpose: Assess Congruence v. Incongruence

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Grisso (2003) Evaluating Competencies “A decision about legal competence is in part a statement about congruency or incongruency between (a) the extent of a person’s functional ability and (b) the degree of performance demand that is made by the specific instance of the context in that case. Thus an interaction between individual ability and situational demand, not an absolute level of ability, is of special significance for competence decisions.” (p. 3233)

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Contextual & Functional Nature • Case law & legal statute have attempted to elaborate on the specific abilities required for competency

– Some states have developed articulated standards for CST – Competency is an open-textured construct (not a bright line construct); not defined by a fixed set of criteria since it is contextual in nature

“Mere presence of severe disturbance is only a threshold issue—it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome.” Golding & Roesch (1988)

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Context Matters • Evaluator’s role is to describe for the court the degree of congruence/incongruence between the defendant’s functional abilities and the abilities required of the defendant to proceed with his/her case • Competency cannot really be assessed independent of the context of the case – Need to find out as much as possible about what is expected of the defendant for his/her particular case

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Defense Expectations of the Expert • Crucial to get info from defense counsel about required abilities, expected outcomes, and case-specific details • Expect evaluators to ask detailed information about: – Abilities required of D for the specific case – Possible penalties, pleas, defense strategy, likely outcome – Anything relevant for guiding competence-related inquiries

• Expect evaluators to ask about interactions with D and to request the opportunity to observe

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Philipsborn on Godinez & Cooper •

The list of tasks that a defendant might be called upon to make (relying on dicta from leading cases, which, he argues, would hold more weight with a judge than secondary sources); arguably all of these matters are either covered or closely related to the decision-making elements described in the most recent competence-related cases (see p. 428) – What is the spectrum of defenses available in this particular case? – How will the defenses be presented, and which witnesses will be involved? – How could the prosecution’s cross-examination, or rebuttal, influence the guilt and penalty phase outcomes? – What are the legal, strategic, and tactical implications of proceeding with a mental state expert at the guilt phase? – If a particular defense theory is not developed during the guilt phase, will the jurors accept it during the penalty phase—for example, evidence of mental impairment not amounting to a full guilt phase defense? – Can a specific defense, such as imperfect defense or mental disorder aggravated by voluntary intoxication, be presented to jurors without testimony from the accused? – If so, will calling an expert who has interviewed the client present the prosecutor with a basis for widening the stream of evidence of penalty-related aggravating circumstances beginning in the guilt phase?

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Philipsborn (2004) • Some court decisions suggest that it is incumbent on defense counsel to seek out the expert to relay this pertinent and relevant information about the case and abilities required of the accused, rather than wait for the expert to seek out defense counsel on these matters • Duhon: “one of the most evident issues is whether the assessing professional, usually a psychiatrist or psychologist, really knows what would go into the defense of a case” – Expert and lawyer need to work together to ensure that the expert has a full understanding of the case and the abilities to be evaluated in the particular defendant IV - B - 19

Attorney CST Questionnaire

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BE WARY OF AN EVALUATOR WHO DOES NOT ASK ABOUT THE ABILITIES THAT ARE EXPECTED OF THE DEFENDANT IF THIS OCCURS…RAISE THE ISSUE WITH YOUR EXPERT!

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INTERVIEW CONSIDERATIONS

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Preparing for the Interview • Minimum requirements: – The charges; Police/arrest report(s) – Reason(s) for referral – Background information from defense counsel on case specific details and considerations

• Expert will look to defense counsel for this information • Defense counsel should also assist expert in obtaining additional collateral information/records IV - B - 23

Obligations of the Expert • Response style – Denial, minimization, exaggeration – Malingering (Psychiatric symptoms, cognitive deficits)

• Cultural considerations – Cultural context & degree of acculturation, language – Cultural perceptions of mental illness

• Incriminating evidence – D’s account should not be included in written report IV - B - 24

Functional Evaluation • Evaluate the ability of the D to perform specific tasks at trial by engaging in those tasks during the interview – Discuss the specific nature of D’s case – Engage the D in discussions that allow the assessment of rational decision making abilities

• Observe interactions between defense counsel and D – Ask defense counsel to discuss possible case strategies, pleas, consequences, outcomes, etc.

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THE ISSUE OF TESTING

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Testing • Forensic Assessment Instruments – Specific to the focus of legal inquiry – Lots of these for CST – Nomothetic v. Idiographic

• Forensically Relevant Instruments – Evaluate characteristics relevant to the legal inquiry – Malingering

• Psychological Testing – Specific to a psychological issue or construct (WAIS, MMPI) – Neurocognitive or language-specific evaluation instruments IV - B - 27

Testing in CST Evaluations • Forensic Assessment Instruments • • • • •

Standardize the assessment process Reduce error and bias Promote meaningful comparisons across time Allow for comparisons between examiners Help to improve communication in legal settings

• Evaluators are being encouraged to use CAIs and should be questioned about their rationale for choosing not to do so IV - B - 28

Testing • Select tests on the basis of the information they provide – Consider how well D fits with standardization samples – Consider the limitations of the instrument for this D

• Expert should be familiar with the psychometric properties of any test/instruments they use – Reliability, validity, standardization/norming samples – Easy target of inquiry for cross-examination

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COLLATERAL INFORMATION

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Collateral Contacts / Records • Collateral information should be obtained to determine the veracity of D’s self-report – Records – Interviews with collateral informants

• Expert should speak with defense counsel before contacting any collateral informants

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Guideline 9.02: Use of Multiple Sources of Information • Forensic practitioners ordinarily avoid relying solely on one source of data, and corroborate important data when- ever feasible (AERA, APA, & NCME, in press). When relying upon data that have not been corroborated, forensic practitioners seek to make known the uncorroborated status of the data, any associated strengths and limitations, and the reasons for relying upon the data. IV - B - 32

Areas of CST Inquiry • Capacity to understand the arrest process • Capacity to understand/appreciate the charges or allegations • Capacity to disclose to counsel pertinent facts, events, and states of mind • Capacity to comprehend and appreciate the range and nature of potential penalties that may be imposed in the proceedings • Capacity to appreciate the likely outcome of the proceedings • Basic knowledge of legal strategies and options • Capacity to engage in reasoned choice of legal strategies and options (decision making) IV - B - 33

Areas of CST Inquiry • Capacity to understand the adversary nature of the proceedings • Capacity to manifest appropriate courtroom behavior • Capacity to participate in trial • Capacity to testify relevantly • Relationship with counsel • Medication effects on CST • Any other case-specific area of relevance IV - B - 34

Steps in Opinion Formation 1 2 3 4

• Determine whether “mental disease or defect” is met (signs, symptoms, diagnosis) • Evaluate relevant functional abilities and deficits (Understanding, Appreciation, Reasoning, Decision Making, Consulting, Assisting) • Determine whether there is a causal connection between any noted deficits and mental disorder/cognitive impairment • Specify how these deficits might impact functioning at trial (or for proceeding to next stage)

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1. Threshold Issue • Mental disease or defect = threshold issue • Diagnosis ≠ incompetence – Incompetent D’s 8 x more likely to have psychotic disorder – Symptoms more important that diagnosis – Incompetence associated with • Formal thought disorder (disorganized speech, incoherence, word salad) • Concentration deficits • Rate of thinking (abrupt, rapid changes or profound slowing of speech / thought) • Delusions (strongly held irrational beliefs that are not based in reality) • Hallucinations (sensory perceptions in the absence of a stimulus) • Intellectual or Developmental Disability (MR)

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2. Psycholegal Abilities • Understanding – Factual understanding of general, legally relevant information

• Appreciation – Rational application of factually understood information to own case

• Reasoning – Use appropriate reasoning processes (weigh, compare, evaluate) in a rational manner (focus on process, not outcome)

• Consulting & Assisting – Engage with counsel in a rational manner; communicate coherently

• Decision Making – Consider specific, contextually-relevant aspects of the case

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3. Demonstrate Causal Connection Mental Disorder / Cognitive Impairment Deficits in Psycholegal Abilities IV - B - 38

Research Findings • 90% of respondents agreed that detailing the link between MI and deficits was essential or recommended (Borum & Grisso, 1996) • 27% of reports provided an explanation regarding how the defendant’s mental illness influenced his or her abilities/deficits (Robbins, Waters, & Herbert, 1997) • 10% of competency evaluation reports reviewed provided an explanation regarding how the defendant’s psychopathology compromised his or her abilities (Skeem, Golding, Cohn, & Berge, 1998) IV - B - 39

4. Functional Deficits at Trial Mental Disorder / Cognitive Impairment Deficits in Psycholegal Abilities Functional Deficits/Impairments at Trial IV - B - 40

Research Findings • The link between functional abilities and required abilities is rarely addressed in competency evaluation reports • 12% of reports delineated the congruence between the defendant’s abilities and his/her case context (Skeem, Golding, Cohn, & Berge, 1998) • 0% of reports delineated the congruence between the defendant’s abilities and his/her case context (Robbins, Waters, & Herbert, 1997) IV - B - 41

Process of Opinion Formation • Consider all the various data sources – Weight according to credibility

• Consider alternative hypotheses • Multiple, convergent pieces of information – Always some outlier data (data that doesn’t conform) – Ask your expert about this data!

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THE WRITTEN REPORT

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Written Report • Expert should provide an oral report of – – – –

Defendant’s presentation style Mental status Opinion regarding competence and basis for incompetence Any incriminating evidence or insurmountable obstacles

• Defense counsel should ask about anything that is not clear – Underlying bases for any noted deficits; degree of impairment; how impairments will translate into functional impairment at trial

• Ultimate issue discussion – Counsel should provide guidance regarding how the competency opinion be presented

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Report Characteristics • Purpose: document relevant information regarding assessment & procedures; communicate conclusions and opinions as well as the bases for these • Nature: thorough yet concise; scope limited to the legal issue at hand; clear, relevant, informative, defensible

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Guideline 11.02: Differentiating Observations, Inferences, and Conclusions • In their communications, forensic practitioners strive to distinguish observations, inferences, and conclusions. Forensic practitioners are encouraged to explain the relation- ship between their expert opinions and the legal issues and facts of the case at hand.

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Guideline 11.03: Disclosing Sources of Information and Bases of Opinions • Forensic practitioners are encouraged to disclose all sources of information obtained in the course of their professional services, and to identify the source of each piece of information that was considered and relied upon in formulating a particular conclusion, opinion, or other professional product. IV - B - 47

Guideline 11.04: Comprehensive and Accurate Presentation of Opinions in Reports and Testimony • Forensic practitioners are encouraged to limit discussion of background information that does not bear directly upon the legal purpose of the examination or consultation. Forensic practitioners avoid offering information that is irrelevant and that does not provide a substantial basis of support for their opinions, except when required by law (EPPCC Standard 4.04). IV - B - 48

Report Contents • • • • • • • • • • • •

Identifying Information Source of referral, reason for referral, statement of the charges Relevant legal standards and criteria Notification/Informed consent/Statement of non-confidentiality Data Sources/Sources of Information Background Information Psychological Test Results, if any Mental Status at Interview Clinical Assessment/Conclusions/Diagnoses Forensic Assessment/Formulation and basis for opinion regarding competency Opinion on restorability or other statutorily required information Summary and Recommendations

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Inappropriate Report Contents • Defendant’s version of the circumstances surrounding the offense • Other legal issues

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5 Common Deficiencies that Set the Best Apart from the Rest • Demonstrate an understanding of evolving standards • Expert should seek out pertinent and relevant information about proceedings from defense • Focus on rational decision making • Delineate all linkages: substantiate conclusions • Communicate prescriptive remediation strategies IV - B - 51

Preparing your Expert for Testimony • Report serves as the basis so ensure it is complete – Ask questions about anything you don’t understand

• Ask your expert what the weaknesses are – There are always pieces of outlier information— ask about these

• Ask your expert to compare data sources with opposing expert’s report – Were different sources used? Implications? IV - B - 52

Preparation - What to Ask your Expert • How was response style evaluated? • What are the relevant cultural considerations, if any? • What alternative hypotheses did you consider? • How does D compare to the standardization/norming samples for any test/instruments used? • What are the limitations of your evaluation/report? • What are D’s competence-related abilities and deficits? • What is the basis for any noted deficits? IV - B - 53

Keys for Preparing CrossExamination • Request raw test data – Can be released to you or your expert

• Request copies of evaluation notes – Expert can assist in interpretation

• Obtain copies of test manuals – Expert can obtain any protected manuals

• Examine the literature on scoring, norms, and psychometric properties for any tests / instruments used – Expert can assist with obtaining & interpreting**

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Using your Expert to Prepare Cross • Did the opposing expert ask about specific abilities required of defendant? • Were the same data sources used by both sides? • What are the limitations of the opposing expert’s evaluation? • What are the limitations of the test/instruments used? • What are the strengths of the opposing expert’s opinion? • Did the opposing expert consider anything that you did not?

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THANK YOU! [email protected] 212.866.0608

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CHAPTER V

The Psychology of Negotiation and Client Counseling By Prof. Jennifer Robbennolt

Reprinted with permission from Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making (2012). Available for purchase:http://apps.americanbar.org/abastore/index.cfm? pid=5100021§ion=main&fm=Product.AddToCart ©Copyright 2012 by the American Bar Association. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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The propensity to truck, barter, and exchange one thing for another . . . is common to all men, and to be found in no other race of animals. . . . Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog. —Adam Smith1

Most lawyers spend a great deal of time thinking about and conducting negotiations. Transactional attorneys negotiate purchases, sales, leases, licenses, and permits. Litigators typically focus on negotiations even while they are simultaneously preparing a case for trial. Indeed, one of the greatest mental challenges attorneys face [An] almost galactic is how to maintain the partisan belief that scope of disputes . . . are subject to resoluwill help them prevail while simultanetion by negotiation [by ously recognizing the weaknesses in their attorneys]. position and the interests of the other side —James J. White2 that will help them to craft an acceptable agreement. Attorneys employ a range of approaches to negotiation including distributive techniques for dividing a fixed pie and integrative methods for trying to expand that pie.3 Psychology offers useful insight into both of these approaches. While many have examined how psychological phenomena can impede agreement, we will also discuss the ways in which psychology can enhance the prospects for agreement. After discussing negotiation, we examine how lawyers can also draw on psychology in representing their clients in mediations.

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A Psychologically Expanded Model of Negotiation According to the traditional economic model of bargaining, people make decisions—such as whether to enter into a settlement, plea agreement, or deal—by trying to maximize their utility, or overall satisfaction. Under this model, a negotiator decides whether to enter into an agreement by comparing the expected utility of the particular agreement to the expected value of the best alternative to the agreement (referred to as the best alternative to a negotiated agreement or BATNA).4 Thus, in the criminal or civil litigation context, a person would compare the anticipated value of the settlement or plea bargain to the likely results of continuing toward trial. A sophisticated calculation would take into account the predicted probabilities of various future resolutions (a later settlement or plea, dismissal on motion, winning at trial, losing at trial) and the value or cost of each of these to the decision maker. Such calculations would include adjustments for all anticipated benefits and costs of settling or proceeding toward trial, such as attorney fees and related expenditures and nonmonetary costs and benefits (publicity, the impact on future relationships, and emotional fallout). In nonlitigation settings, the economic approach to bargaining posits that decision makers compare the anticipated value of the proposed deal to alternative courses of action. For example, a person who has been offered the opportunity to buy a house would consider such factors as the characteristics and prices of alternative houses and whether it might make more sense to invest the money in the stock market and continue to rent a home. Given the complexities of human perception, memory, judgment, decision making, and emotion, taking into account psychological research can help lawyers identify ways in which people routinely and predictably deviate from this standard economic model. In many instances, such departures can impede our abilThere are many situity to reach optimal negotiated agreements. Anger or ations in which lessoptimistic overconfidence may, for example, lead us to than-rational agents reject agreements that we might be better off accepting. may reach agreement while perfectly ratioIn other instances, however, we may jump at agreenal agents do not. ments that a utility maximizer would not accept. Loss —Daniel Kahneman & aversion, for example, may cause us to reject risks that Amos Tversky5 could be worth taking; and overconfidence may cause us to take risks that are ill advised, such as closing on a transaction that may be undesirable. The psychological aspects of the dynamics between the lawyer and the client—with lawyers handling negotiations as agents for clients—can also complicate negotiations. The lawyer-client interaction is particularly important because attorneys largely conduct negotiations outside the presence of their clients. After initially consulting with the client, the attorney typically acts as a conduit, expressing the client’s concerns to the other side and reporting back to the client on the negotiation

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counterpart’s interests, demands or offers, and concerns. These communications will inevitably be filtered through Discourage litigation. the attorney’s own perspective, and the manner in which Persuade your neighbors to compromise the attorney conveys any proposal will influence how the whenever you can. . . . client responds. As a peacemaker the Negotiation presents particular challenges for lawyer has superior opportunity of being attorneys as they must simultaneously adopt the roles of a good man. There advocate and adviser. It is very easy for agents to align will still be business their perspectives with those of their clients. We saw in enough. chapter 4 that even partisan observers tend to adopt a —Abraham Lincoln6 perspective that is similar to that of the principal actor. And we saw that attorneys tend to evaluate cases in ways that are consistent with the interests of their clients. This alignment has a benefit, as we will see, because in negotiating deals and settlements, attorneys should aim high and display confidence in their clients’ position. However, in addition to an advocate, the client needs an adviser who can provide a more dispassionate analysis of her options and prospects for success. It can be challenging for the attorney to engage in partisan negotiations with the other side and simultaneously provide the client with objective advice.7 It can also be challenging for an attorney to balance the desire to maintain good rapport with the client with the need to provide accurate advice. The fact that attorneys often conduct negotiations outside the presence of their clients is particularly significant to the extent that the attorney has interests or perspectives that diverge from those of the client. Although the rules of legal ethics make clear that clients—not attorneys—should ultimately make the decision as to whether or not to enter into a negotiated agreement,8 the divergent perspectives and incentives of attorneys and clients can impact the negotiation.9 Attorney decisions are not only influenced by the attorney’s assessment of the client’s case and best interests but are also potentially influenced by the decision's impact on the attorney herself including implications for the attorney’s reputation, her need to manage her own time, and personal financial considerations. For example, repeat-player attorneys who negotiate against one another frequently may be able to use the reciprocity aspect of persuasion (see chapter 6) to convince one another to settle in situations that might not serve a particular client’s best interests.10

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Attorney Self-Interest Sometimes the attorney’s self-interest is blatant and can lead attorneys to recommend against settlements that serve the client’s best interests or in favor of settlements that do not. Renowned plaintiffs’ lawyer Gerry Spence considered

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how a lawyer’s financial constraints might influence how a lawyer advises his client about settlement. While presenting a very confident face to the adversary, the lawyer who needs a quick settlement to pay the bills might present a more negative picture to the client: This is a tough case, Helen. Our expert is a little mushy on his conclusion, and you can never predict what a jury will do. They could turn you loose with nothing. Nothing, Helen! We got money on the table. Not enough, but “a bird in the hand. . . .” And what that s.o.b. defense attorney can do to you on cross-examination! He’s a vile reptile. Yes, Helen, I hate to say this, but I don’t think we can win.11

Constructing Initial Proposals Under the standard economic model of negotiation, constructing an initial proposal should be a fairly simple task. The attorney should (1) explore the client’s preferences to figure out what will satisfy the client, (2) help the client assess the probability of achieving various levels of satisfaction under alternative paths, and (3) help devise a proposal that is calculated to maximize the client’s satisfaction given the relevant constraints. However, psychology shows that none of these tasks is straightforward and that additional tasks may be important as well.

Assessing What the Client Wants Typically, one of the first steps that an attorney takes in undertaking a negotiation is to figure out what the client wants to accomplish. Deciphering what the client wants, however, is not as easy as one might imagine. Clients themselves will not necessarily know what will provide them with the most satisfaction. As we saw in chapter 5, we have difficulty predicting our responses to future events or outcomes—making mistakes about the degree and duration of our reactions. Thus, clients may think they know what they want but may make choices and decisions that do not serve their long- or even short-term interests.12 Clients’ lack of knowledge of and experience with the legal system can amplify the challenge of predicting what would be a satisfying outcome. The focusing illusion (see chapter 5), in particular, can result in the incorrect prediction of future emotions as people focus on isolated aspects of a future situation to the neglect of other likely influences. A person who is ending a marriage, for example, may be focused on a desire to put an adulterous soon-to-be-ex spouse through the litigation ringer rather than on other aspects of postdivorce life. Students tend to focus on certain features of their job offers—in particular, the salary and whether the offer is from a prominent employer—rather than on other features of the offer such

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as location, medical benefits, or the nature of the work itself.13 We saw in chapter 5 that people tend to focus more on economic or quantifiable factors—exhibiting lay rationalism—perhaps because they believe such factors to be more “real.” Yet, the less concrete factors may in fact have a large impact on how clients feel. To help the client keep the big picture in mind and get a better handle on what will be most satisfying in the long run, the attorney can draw focus to a range of relevant aspects of the situation, particularly those that are less salient or less concrete. In addition, although clients may find it hard to believe, we have seen that knowing how a peer reacted to a similar set of circumstances can help people to make more accurate assessments of their own emotional reactions (see chapter 5). Thus, the attorney can offer the perspective of other clients who have experienced similar choices.

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Sharing the Experience of Others Attorney: Mrs. Brown, I understand that you want to want to punish Mr. Brown by going to trial. Many of my clients have had similar thoughts when going through nasty divorces. However, I think it’s important for you to know that most of them haven’t necessarily been satisfied by the trial. The trial itself doesn’t do much to change their feelings about the divorce or their spouse, nor does it result in their spouse suffering more than they end up suffering themselves. And you may find that when you put this part of things behind you, you will be able to focus on all of the other aspects of your life that make you happy. Thus, while the decision as to whether to make a settlement demand is entirely yours, I would counsel you to think about what it is that you hope to gain by going to trial and whether there might be a way to obtain those same benefits through a settlement.

It can also be useful to suggest that clients employ a scoring system in which they assign values to various interests, including those that might be less concrete. For example, a home buyer might easily get carried away by the fabulous mountain views afforded by a particular property. However, an attorney might help the client to list all of the various attributes that the client is looking for in a house (for example, size, location, type of construction, and age) and to place an estimated value on each of these attributes. The attorney and the client would then be better able to construct an offer that more fully reflects the client’s entire mix of preferences. While it may not be possible to perfectly identify and value every relevant feature, making the effort to list and value a range of considerations will help both the attorney and the client think more broadly.

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Compounding the difficulty that clients have in making predictions about their own future satisfaction is the fact that attorneys may make unfounded assumptions about what they think will make their clients happy. It is all too easy for an attorney to focus on the negotiated resolution that she would want if she were in the client’s shoes, forgetting that the client’s perspective may be very different. The attorney who is not fond of water, for example, may have a difficult time appreciating the great importance that the client places on having a swimming pool. Similarly, the attorney may not recognize the extent to which her own personal or institutional interests affect her sense of what the client wants. Consider the class action lawsuits filed after the decision in Brown v. Board of Education.14 According to legal scholar Derrick Bell Jr., lawyers leading civil rights groups were fervently opposed to anything less than full desegregation, in part because contributors to civil rights groups took that position even though such a remedy was not desired by all “victims of segregated schools.”15 Likewise, an attorney who focuses more on the assumed immediate needs or desires of a particular client may not recognize that the client is willing to set aside solutions that might best serve her own personal interests in order to better achieve a resolution that would help a broader segment of society.

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Long Wait in the Emergency Room Mrs. Grigorich is a client whose injuries were exacerbated when she was kept waiting too long by hospital emergency room staff. She believes that the hospital staff was rude to her and ignored her in part because she is very overweight. Attorney: The settlement offered by the hospital would pay all of your medical bills, compensate you for the time you lost from work as a result of having been hospitalized for extra days, provide you with an additional payment of $10,000, and pay your attorney fees. I strongly recommend that you take the settlement. It gives you everything and more than I expect you could get in court. Mrs. Grigorich: But have they taken steps to make sure that this never happens again to someone else? And would they apologize to me for what they did?

People are complex and so, too, are the ways in which they achieve life satisfaction. Clients may seek compensation, vengeance, fair and dignified treatment, apologies, reform, and an array of other goals in their legal interactions (see chapter 10). Moreover, as we saw in chapter 8, people have many different ways of thinking about justice. In addition, people from different cultures tend to emphasize varying objectives in a negotiation, for example, placing different degrees of importance

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on goals such as maintaining relationships or creating relational capital, protecting autonomy, expanding social networks, saving face, vindicating rights, achieving economic gains in the short or long term, protecting collective interests, or laying a foundation for the future. But clients’ complexities may not always be easily visible to the attorney. For example, as we discussed in chapter 10, attorneys may assume that clients are primarily concerned about money, whereas their actual concerns may be much broader. Attorneys may also monetize disputes that clients, at least initially, do not perceive in primarily monetary terms. A study by Tamara Relis found that [plaintiffs’] explanations of why they sued and what they were seeking from the legal system are thickly composed of extralegal aims of principle. . . . Yet, plaintiffs’ objectives of obtaining admissions of fault, acknowledgments of harm, retribution for defendant conduct, prevention of recurrences, answers, and apologies remain invisible to most lawyers throughout the duration of litigation and mediation.16

Clients, too, may overemphasize the extent to which money will make them happier. Plaintiffs in civil litigation often aspire to substantial monetary awards, and defendants seek to avoid paying such awards. In transactions, the monetary aspects of a deal are often more prominent than other issues even though those other issues may prove to be equally or more important. This focus on money is understandable. Attorneys and clients may both share Oscar Wilde’s view: “When I was young I Money is better than thought that money was the most important thing in life; poverty, if only for 17 now that I am old I know that it is.” On the other hand, financial reasons. even popular culture disputes the idea that money can —Woody Allen18 buy happiness. As Paul McCartney sings, “money can’t buy me love.”19 As we know from chapter 3, psychological research shows that both perspectives on money have some truth to them. Money can be helpful in permitting clients to achieve basic levels of comfort and security. The financial aspects of the agreement can be extremely important when there are bills to pay. And people do typically care about how they are treated as compared to others (see chapter 8). A client, therefore, may value getting a deal that is financially comparable to that received by others who are similarly situated. At the same time, however, sometimes holding out for those last dollars may not make the client more satisfied in the long run. As we have seen, obtaining more money has diminishing returns and does not necessarily make people as happy as they think it will. Thus, it is important to help clients think about both the monetary and the nonmonetary aspects of a potential agreement. Clients’ nonmonetary interests can open a wealth of negotiating opportunities because sometimes the nonmonetary item that would make one party happy is relatively inexpensive for the other to provide or can even serve both sides’ interests. Perhaps a thank-you, a handshake, a certificate, an apology or explanation, a reprimand, or a fairly simple reform of procedures would help to resolve a matter

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that would otherwise go to trial. Perhaps providing delivery on a particular date or renaming a product is easy for the supplier and crucial to the buyer. Institutional reforms—such as securing additional training for the defendant or its employees, improving signage or labeling, changing bureaucratic processes, or changing living or working conditions—might be mutually beneficial. In short, attorneys need to make a concerted effort to ensure that they have a good understanding of what their clients really want and that they counsel clients to more effectively predict what will bring them future happiness or satisfaction. Rather than depend on assumptions, the attorney should marshal all of her interviewing skills (see chapter 9) to find out what a particular client might be looking for in a negotiated agreement. By asking lots of questions, providing information about other clients’ experiences, and helping the client to test her assumptions, the attorney and the client can get a better sense of what it is that the client most wants. Similarly, the attorney can glean information about the client’s preferences by watching for and following up on emotional and other nonverbal cues (see chapters 3 and 7). Attorneys should also remember that what people want can change over time and that people do not always remember that they used to want something different (see chapter 2). Thus, for attorneys who engage in extended negotiations, it will be important to reconfirm clients’ goals as time passes.

Assessing What the Other Side Wants While it is important to carefully consider what the client wants, the attorney and the client also should spend some time thinking about and trying to learn about their negotiation counterpart. Eliciting information from the other side about its needs, interests, and obstacles will help to make the negotiation productive and make it To be successful, you easier to structure a proposal that maximizes both joint have to be able to and individual gains. Thus, as an initial matter, good relate to people; they negotiators will work to be good interviewers by drawing have to be satisfied with your personality on the lessons of chapter 9. to be able to do busiTo learn about a negotiation counterpart, it is desirness with you and to able to try to build rapport and to establish a degree of build a relationship trust. As we saw in chapter 8, negotiators understand and with mutual trust. —Trump Org. Exec. VP expect that their negotiation counterparts will not be neu& Sr. Counsel George tral but will act as advocates for their own interests. This, H. Ross20 however, does not preclude establishing a relationship of trust appropriate to the circumstances. For example, the two sides may be able to trust that neither will lie to or deliberately try to harm the other. Such a relationship of trust can be important to effective negotiation (although, of course, naïve trust can be detrimental). In particular, to the extent that negotiators trust each other, they will be more comfortable sharing the kind of information that can lead to agreements that expand rather than merely divide the pie.

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Nelson Mandela as Negotiator In his account of Nelson Mandela’s negotiation with the leaders of the South African apartheid regime, conflict resolution expert Robert Mnookin describes the steps that both sides took to try to ensure that they could trust one another, notwithstanding a sordid history and significant political differences. For example, during the first of their several meetings, government official Barnard confided in Mandela that he was worried that he would not be able to communicate effectively in English. Mandela responded respectfully, “I can follow Afrikaans quite well. If I don’t understand something, I will ask you.” Furthermore, Mandela established rapport with each of the government officials: one was “surprised and flattered” that Mandela remembered him from their first meeting some thirty years prior. Although their policy differences were significant, these “simple gestures” allowed the two parties to negotiate respectfully and effectively. In return, the government relocated Mandela from prison to more comfortable accommodations during the negotiations. Eventually, the successful negotiations between Mandela and the leaders of the apartheid regime led to the dismantling of apartheid in South Africa.21

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Perspective taking can be particularly beneficial for assessing the other side’s interests. Negotiators who take Don’t assume you the perspective of their opponent—trying to understand know the other side’s story. If you think you what their counterpart is both thinking and feeling and do, you’re probably being “relentlessly curious about what is really motivatwrong. Even if you ing the other side”22—can more effectively devise a proturn out to be subposal that will appeal to the other side and overcome the stantially right, you will still be more effectendency to assume that what is good for one side must tive if you begin with 23 be detrimental to the other. an attitude of curiosity One of the best ways to learn about a counterpart’s about how the other interests and concerns is to ask about them. Thus, if the side sees the world. —Robert H. Mnookin, lawyer is representing a ballet company that is negotiatScott R. Peppet & ing over the potential hire of a new principal dancer, she Andrew S. Tulumello24 would want to ask why the dancer is considering joining a new company, what the dancer is looking for in a new contract, what forms of compensation are of interest, and what additional concerns the dancer might have. To be most effective, such questions should be specific and should be formulated so as to disconfirm any assumptions that the lawyer might have (see chapter 1).

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Inquiries to a counterpart should also focus on possible impediments to settlement (see chapter 6). Finding out about the other side’s constraints can often lead to a more successful deal. If the principal dancer is reluctant to accept an offer of employment because she is hesitant to take her young child out of the school she loves, the company might help her to find a particularly suitable school in the new locale. Consider the experience of one Fortune 500 company: A few years ago, Chris’s company entered into negotiations with a small European firm to buy an ingredient for a new health care product. (Some details have been changed to protect the companies involved.) The two sides settled on a price of $18 a pound for a million pounds of the substance annually. However, a disagreement developed over terms. The European supplier refused to sell the ingredient exclusively to the U.S. firm, and the U.S. firm was unwilling to invest in a product that was based on an ingredient its competitors could easily acquire. With considerable hesitation, the U.S. negotiators sweetened the deal, offering guaranteed minimum orders and a higher price. To their shock, the supplier still balked at providing exclusivity—even though it had no chance of selling anything close to a million pounds a year to anyone else. The negotiation seemed to be at a dead end, with the U.S. negotiators out of ideas for pushing through a deal. Even worse, the relationship had deteriorated so much that neither side trusted the other to continue bargaining in good faith. At that point the stymied U.S. team brought in Chris to help improve relations. He did more than that. After listening to the facts, he asked the Europeans a simple question: Why? Why wouldn’t they provide exclusivity to his corporation, which would buy as much of the ingredient as they could produce? The response surprised the Americans. Exclusivity would require the supplier’s owner to violate an agreement with his cousin, who bought 250 pounds of the ingredient each year to make a locally sold product. Armed with this new knowledge, Chris proposed a solution that allowed the two firms to quickly wrap up a deal. The European firm would provide exclusivity with the exception of a few hundred pounds annually for the supplier’s cousin. In retrospect, that solution seems obvious. But as we’ve seen in real-world negotiations, as well as in classroom simulations with seasoned deal makers, this type of problem solving is exceedingly rare. That’s because most negotiators wrongly assume that they understand the other side’s motivations and, therefore, don’t explore them further. The U.S. team members initially failed because they thought they knew why the supplier was being difficult: Clearly, they assumed, the Europeans were holding out for a higher price or didn’t want to lose out on future deals with other customers.25

Offering multiple proposals for consideration at the same time can also be useful for gaining perspective on a negotiation counterpart’s preferences: We could structure this in a variety of ways. For example, we could consider the following: (1) delivery of five thousand widgets in one week at a price of $3 per widget; (2) delivery of one thousand widgets tomorrow, with the remaining four thousand to be delivered in a week, at a price of $3.10 per widget; or (3) delivery of five thousand widgets tomorrow at a price of $3.50 per widget. From your perspective, how do these compare?

By devising multiple proposals that are all equally acceptable to the client but that differ in subtle or not-so-subtle ways, the attorney can gain information about the

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relative importance of different issues to the other side. Even if none of the proposals is acceptable to the other side, obtaining reactions to different alternatives can provide a great deal of insight that will be useful as additional proposals are created. To the extent that the lawyer has contact with the opposing principal, the lawyer can also closely observe that principal’s reactions and outward expressions of emotion for additional information about his interests, preferences, and constraints. If a personal injury plaintiff is angry, then perhaps an apology would be welcome. If the seller of a property shows signs of being anxious and desperate to make a sale, then perhaps a lower but speedy offer is in order. Even when the parties have not had a chance to meet, the attorney and the client can try to anticipate whether a negotiation counterpart might be experiencing anger, jealousy, fear, or an array of other emotions (see chapter 3). In thinking about the other side’s needs, negotiators Roger Fisher and Daniel Shapiro suggest that it can be helpful to pay attention to five core concerns: appreciation, affiliation, autonomy, status, and role. Note how these five concerns relate to the notion of procedural justice discussed in chapter 8. Fisher and Shapiro suggest that by using these concerns as a lens, negotiators can do a better job of understanding their counterparts and themselves, devise better proposals, and engage in a more productive negotiation process.26

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Paying Attention to Underlying Concerns Law professor Leonard Riskin describes how familiarity with the five concerns emphasized by Fisher and Shapiro might help hypothetical longtime business partners Jack and Phil negotiate more effectively about Jack’s ongoing role in their company, PJB: Using the core concerns as a lens to understand Jack . . . Phil might realize that Jack: 1. Thinks that Phil does not appreciate his contribution to PJB; 2. Is concerned about his affiliation with Phil and with PJB; 3. Feels a need for autonomy in decision-making about PJB and his relationship to it; 4. Is concerned about his status in relation to Phil, Phil, Jr., and PJB; and 5. Believes that he does not have a fulfilling or appropriate role in PJB. Thus, Phil should be able to see that Jack’s core concerns were significant in the evolution of the conflict and would remain important to Jack during the negotiation. . . . Phil’s new insights about Jack would enable him to use Jack’s core concerns as a lever to attempt to stimulate positive emotions in Jack. For

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instance, Phil might express appreciation for Jack’s commitment to PJB, his strong relations with customers, his willingness to travel, and other interests or perspectives that Jack expresses during the negotiation. Phil might build affiliation with Jack by recalling their long history of work and friendship: by sitting in such a way as to convey closeness; by initiating in-person, rather than email contact, and talking about the real issues in their relationship. In addition, he could respect Jack’s autonomy in the negotiation by consulting with Jack before making any decisions about negotiation procedure. He might propose a brainstorming process or ask Jack to suggest options for addressing various issues. He could acknowledge Jack’s status as a founder of the firm, as a great boiler salesman, as an expert on boilers, as a good golfer, and a bon vivant. Finally, Phil could try to ensure that Jack had a fulfilling role in the negotiation (i.e, a role that has “a clear purpose,” is “personally meaningful,” and “is not a pretense”), with lots of opportunities to speak freely and to influence the focus, procedures, and outcome.27

The lawyer can also gain perspective on a counterpart’s interests by providing that counterpart with information about his own or his client’s needs and interests. Disclosing information can trigger the reciprocity norm (see chapter 6), resulting in reciprocal disclosure.28 Thus, it can be helpful to commence a negotiation by sharing information with a counterpart in the hope that the favor will be returned. In addition, the lawyer may be able to pick up information by observing the counterpart’s reaction to the disclosure. As many negotiation experts have pointed out, there is a strategic tension between sharing information, which can help both sides achieve joint gains, and guarding information, which may be important for achieving individual gains. Accordingly, it can be important to disclose information incrementally and to be clear that disclosure must be a two-way street.29

Devising a Proposal Having gathered lots of information and considered multiple perspectives, a negotiator must eventually structure a proposal and consider how best to convey it to the other side. Just as it is important to think about the other side’s interests, preferences, and constraints, it is also useful to think about how a negotiating counterpart will be affected by the proposal itself and the way it is presented.

Be Ambitious Research has demonstrated an important link between negotiator aspirations and negotiation outcomes. For example, in the transactional context, negotiators with more challenging goals tend to negotiate more advantageous final sales prices than

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do negotiators with lower goals. Negotiators with more challenging aspirations similarly tend to have higher Always aim your goals expectations for their performance in the negotiation, and aspiration for the moon, because even exchange more information, and make more exacting if you don’t make it, demands. They also tend to be willing to devote more you’ll always end up time to the negotiation, slower to make concessions, and reaching the stars. more willing to bluff.30 —Anonymous31 Challenging aspirations can also anchor other negotiation judgments (see chapter 4).32 By making a particularly low offer, for example, a buyer may be able to influence seller’s aspirations or even her sense of how much an item is worth, although there is, of course, less room to sway the valuation of an item whose worth can be objectively determined. The question of how extreme is extreme enough but not too extreme will turn on the information that the negotiator is able to obtain about his counterpart’s perspective and alternatives and what the negotiator is able to justify with reasons (see chapter 5).33 Starting with a more extreme negotiation position also gives the negotiator the chance to make concessions designed to elicit reciprocal concessions from the other side. The negotiator might proceed as follows:

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Joe, as you know, my client demanded $2 million in his complaint, and I don’t have to tell you that he very sincerely believes his claim is worth at least that much. Given that we have now decreased our demand to $1.2 million, I think it is only fair that you raise your initial offer of $100,000 by a comparable amount to $900,000. Then maybe we can just split the difference and resolve this claim of copyright infringement for $1.05 million. Whaddya say?

Recall that the psychology underlying distributive justice (see chapter 8) may also lend credibility to this split-the-difference approach. At the same time, attorneys and clients must be careful not to sink themselves with their own ambitious initial demands by becoming anchored to those demands. If the client starts to believe that her initial demand of $380,000 for the sale of her house is a “fair” demand, then she may have a hard time accepting a lower amount even though it is almost inevitable that the buyer will offer less. Given that even irrelevant numbers can act as anchors, it seems likely that numbers the client believes have been fairly calculated can have an even greater impact.34

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Hoist with Their Own Petard In the class action environmental litigation depicted by Jonathan Harr in the book A Civil Action, plaintiffs and plaintiffs’ attorneys became anchored to the extravagant punitive damages demand made by plaintiffs at the suggestion of Harvard Law School Professor Charles Nesson. Nesson urged that the plaintiffs

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make a demand of more than half a billion dollars—a year’s profits from the two defendant companies—in order to “ring alarm bells in corporate boardrooms.”35 Having made the demand, plaintiffs’ counsel found it impossible (until they had lost many claims at trial) to settle the case for a lower figure. Negotiators must also recognize that those who hold more challenging aspirations are more likely to be dissatisfied with the results of the negotiation, given the same objective outcome, than those with less challenging goals. In other words, although parties who are more ambitious tend to achieve objectively better results in negotiations, such ambition may also lead to subjective disappointment as those who seek the most are not likely to get all they hope for and are more likely to compare their outcome to something even more favorable.36 Thus, while we do not counsel attorneys to avoid making high demands or low offers, we do counsel them to remind themselves and their clients that extreme demands and offers are just starting points in most negotiations. Attorneys can note that although it may feel disappointing to make an aggressive offer that will inevitably be rejected, such offers can often ultimately lead to better results. In addition, when the negotiation has concluded, satisfaction can be improved by making a favorable comparison to the bottom line goals rather than by focusing on the highest aspiration.37 ✦ ✦ ✦ ✦ ✦

The Negotiation Dance Consider the ways in which an attorney can prepare his client for the negotiation process: Attorney: As you know, we’re at the point where we need to begin to fashion an offer in this case. The way legal negotiations typically work is that both sides start pretty far apart in the negotiation, and then over time we tend to move closer and closer toward a resolution. Some people refer to this as the negotiation dance. I tell you this because I think our discussion today should have two parts. First, I want to work with you to come up with terms we think would be reasonable terms for resolving the defamation claim that the plaintiff has made against you. But then, after we have come up with those terms, we’ll also talk a bit about the strategy for this negotiation. The offer we decide to make after today’s meeting won’t be our final offer—it will be a lot lower than where we’ll end up and is just a starting point for the negotiations. If we are able to settle this dispute, we will likely have to give the plaintiff quite a bit more than we will offer today. Does that make sense to you? Client: Sure, I get it. Today is just a starting point.

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Be Creative To craft the most effective agreements, negotiators need I have had a philosophy for some time in to be creative and open-minded in structuring their regard to [this treaty], proposals. It is common, particularly in independent and it goes like this: Western cultures, for people to be affected by a fixed pie the Russians will not bias. That is, we tend to assume that interests are incomaccept a . . . treaty that is not in their best patible—that one side’s gain is necessarily another side’s interest, and it seems 38 loss. Legal settings, in particular, can elicit these sorts of to me that if it is in assumptions. People tend to associate law with competitheir best interest, it tiveness (rather than cooperation). When primed with can’t be in our best interest. legal concepts they perceive situations as more competi—U.S. Congressman tive, perceive others as more untrustworthy, and make Floyd Spence40 more competitive decisions.39 Relatedly, many of us tend to assume that others are more selfish than we are (see chapter 1). When such differences are overestimated, it is hard to work together and find common ground. The assumption of a fixed pie is so engrained that it can cause negotiators to compromise (that is, to divide a seemingly fixed pie) even when no compromise is needed:

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Leigh Thompson has shown that even when two sides want the exact same outcome, negotiators often settle for a different outcome because they assume that they must compromise to reach agreement. She developed a negotiation simulation that included two issues that were compatible; the parties had the exact same preference. From an objective standpoint, there was nothing to negotiate on these issues, as no real conflict existed. Yet 39 percent of negotiators did not agree on the mutually preferred outcome on at least one of the two compatible issues!41

When negotiators assume a fixed pie and fail to share information that might reveal compatible interests and supportive creative solutions, suboptimal deals can result. While some pies really are fixed in size, many are not. However, creativity is often required to see that interests may be aligned. Negotiations that appear to turn on a single issue can be recharacterized as involving multiple issues that permit one side to gain without causing equivalent harm to the opposing party. For example, although both Company A and Company B may have insisted that they needed exclusive control over a disputed trademark, perhaps this issue could be resolved using a license that gives some control to each company. In a case involving a claim of wrongful termination, a new job might be created that will provide income to the offeree and services to the offerer. Stretching payments over time may be beneficial to both sides of a transaction. Furthermore, apologies, institutional reform, and community service can be useful components of mutually beneficial dispute resolution.

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Recognize the Power of Apology Recall the letter of apology provided by MIT President Charles Vest to the parents of Scott Krueger, a young man whose death was attributed to excess alcohol consumption at a fraternity party (see chapter 10), and the apology issued by Kent Hospital to actor James Woods and his family following the death of Woods’s brother (see chapter 8). By changing the assessments that people make about the harm that occurred, the motivations of the relevant actors, or the extent to which respect has been shown, apologies can be central in helping the parties to reach agreement. While apologies will not always be appropriate, attorneys should ask themselves whether an apology might be meaningful to an opposing party and whether the client might be interested in receiving or willing to give an appropriate apology. If so, attorneys can arrange meetings between clients to allow for personal interaction or can help their clients to provide written apologies.

A range of psychological insights can be useful in developing creative proposals. A creative corporate attorney, for example, might capitalize on what she knows about framing (see chapter 5) by seeking to limit benefits for newly hired or newly unionized workers rather than restricting benefits previously granted to the union. Furthermore, recognizing that thinking about the near term focuses attention on the details while a longer time perspective focuses attention more globally, a negotiator who is trying to get a counterpart to make repairs to a property might consider changing the temporal focus of the discussion, shifting attention from the immediate term (in which logistical impediments may seem formidable) to discussion about undertaking repairs over the next several years, making those actions seem more feasible (see chapter 5).42

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Charitable Contribution in Lieu of Punitive Damages Plaintiffs sometimes desire punitive damages as a way of shaking up a defendant. But defendants often object to putting a punitive damages payment into the pocket of plaintiffs and their attorneys. Creative plaintiffs’ attorneys have forged settlements by suggesting that the plaintiff forgo the punitive damages component of the claim and instead have defendants make substantial contributions to legal services or charitable organizations.43

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Similarly, the attorney representing Dr. X, the inventor of a new product that he claims can deodorize odoriferous shoes, might recognize that Dr. X has a much higher tolerance for risk than do the stores in which he is trying to place his product and so might propose a consignment agreement. Under such an agreement, the stores, which prefer less risk, would not need to pay Dr. X for his product until it was purchased by customers; and Dr. X, who is more tolerant of risk, would bear most of the risk that the product might not sell. Recognizing different orientations toward risk—across individuals, situations, and even ways of engaging in mental accounting44—can also help attorneys structure more creative settlements. For example, repeat players can often afford to be more risk neutral, evaluating overall risk over a stream of outcomes. By contrast, people who are rarely involved in litigation, such as most plaintiffs in personal injury suits, may not feel as if they can afford to lose a case at trial. Attorneys should not assume that their clients share the attorneys’ preferences about risk. Differences between the attorney and the client might be accentuated because the money or other gains or losses at issue would primarily belong to the client and not the attorney. Accordingly, it can be helpful for attorneys to discuss risk tolerance with their clients and to alert clients to instances in which they express preferences that are contrary to the rules of probability. Such discussion can equip the client to make educated decisions that are consistent with her own risk preferences. While we have seen that being creative and brainstorming options can aid development of a proposal, it is also true that the generation of too many options can impede good decision making: “people often have great difficulty selecting the value-maximizing option when multiple options are on the table; that is, the very presence of multiple options has a tendency to induce people to make suboptimal decisions.”45 Thus, as the attorney works with the client to develop a proposal, the attorney should be careful not to overwhelm the client with limitless choices and should help the client develop tools to choose among various creative options.

Recognize the Importance of Fairness and Justice Norms In constructing and presenting offers, an attorney should consider how the other side will perceive the fairness of the offer. People tend to care a great deal about fairness and justice even though they may not always agree about what is fair or just (see chapter 8). Furthermore, people may accept a proposal that is objectively less beneficial if they are convinced that other similarly situated people have accepted a comparable deal or if special circumstances seem to warrant a deviation from what otherwise might be the norm. Consider the following: Prosecutor Ramirez: Mr. Limberger, your client has been charged with arson in the second degree, which carries a penalty of up to ten years in prison and a fine of up to $10,000. We are willing to offer your client a plea agreement. In these circumstances, it is the regular practice and custom of this office to offer your client this deal: if she pleads guilty to the lesser charge of arson in the third degree, she will serve just four years in state prison and pay a fine of $5,000.

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Apart from whether this plea agreement is truly fair in the grand scheme of things, the prosecutor has increased the likelihood that the defendant and her lawyer will find it acceptable by presenting the plea as consistent with the office’s typical practice and, therefore, unbiased or at least not comparatively unfair (see chapter 8).46 Such a characterization also takes advantage of the influence of social proof (see chapter 6) by at least intimating that others have taken similar offers. Of course, were the recipient of such an offer to investigate and learn that the offer is not in fact consistent with office policy, such a characterization by the prosecutor would likely backfire. In similar ways, recognizing a negotiation counterpart’s special claims to fair or just treatment can also make an offer more attractive. Ms. Jones, your client Smith Recording Studio has sued my client, Video Enterprises, claiming that my client damaged some of the Smith Recording equipment by improperly installing additional amplifiers. This allegation particularly pains my client as it has greatly appreciated its relationship with Smith Recording over the years. As you know, we do not believe that any of our workers did or could have damaged the Smith equipment. Nonetheless, we think it would be fair and appropriate to recognize the value of our longstanding business relationship by crediting Smith Recording in the amount of $500 on its next bill.

Presenting Proposals In addition to the substantive content of a proposal, the way that a proposal is presented can be quite important. In particular, to the extent that the negotiator anticipates that the counterpart will resist the proposal, the negotiator should try to structure the proposal and its presentation in a way to reduce that resistance.47

To Whom Should the Offer Be Conveyed? Savvy negotiators, like children, know that it may be better to address an offer to one member of a team than to another. Even though parents may well consult with one another on many issues, one parent or the other may be the softer touch when the child asks to get that special treat. Similarly, one member of the board of directors may be more receptive to an idea than another, or one member of a legal team more amenable to talking settlement. Attorneys should remember that they have the power to ask to negotiate with or against particular negotiators. As we have seen, in traditional negotiation, attorneys are the conduits through whom proposals flow. If the substance of proposals were all that mattered and if that substance could always be conveyed verbatim and with the same inflection and other nonverbal cues, it would not matter that the proposal was conveyed to a client through an intermediary. However, we have seen that interpretations are malleable, that no two people will likely see the world in exactly the same way, and that communication is complicated. As many of us learned while playing the childhood game of “telephone,” every transmission of a message is an opportunity for distortion. Thus, even though an attorney may intend to be a completely accurate conduit for a proposal, and while the ethical attorney will surely attempt to convey the key terms

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of a proposal accurately, it is quite possible the proposal may transform in transmission due to changes in language or emphasis.

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The Attorney Conveys an Offer In the example below, notice the differences between the way an employer’s offer is originally conveyed and the way it is then presented to the client employee: Employer’s attorney to employee’s attorney: As you know, my client, ABC Industries, denies that it engaged in any discrimination in failing to promote your client, Jenny Renteria, to be a senior account representative. ABC Industries also denies that Ms. Renteria was subjected to any illegal sexual harassment. Nonetheless, we believe Ms. Renteria to be a very capable account representative and we have valued her services greatly over the past fifteen years. Because we think so highly of Ms. Renteria’s work and because we would hate to lose her services as an account representative, we are hopeful that we might find a mutually beneficial solution to the dispute that has arisen here. Might Ms. Renteria be interested in a settlement that would transfer her to our Second Street office? We understand that office is closer to Ms. Renteria’s home. Her title would remain what it has been, account representative, but the nature of the Second Street office would allow her to expand her job responsibilities somewhat, and we would therefore increase her pay by $1.50 per hour. Her new boss would be Jane McDougal, who has the reputation of being one of our best managers. I really think Ms. Renteria would enjoy her new position. Employee’s attorney to employee: Well, I got a call from ABC’s attorney, and, as I feared, they are not offering much on the settlement front. They are still completely denying that they engaged in any discrimination or sexual harassment. As a result, they are not willing to give you the promotion. The only thing they are willing to do is to transfer you to another office where you would remain an account representative. On the upside, you would get a pay increase of $1.50 per hour. Although the plaintiff’s attorney’s summary is not substantively inaccurate, and likely would not be found to be unethical, the client is far less likely to be attracted to the offer as conveyed by her attorney than she might have been to the offer as conveyed by the defendant’s attorney. Given that receiving attorneys may inadvertently influence how offers are understood, it can be beneficial for attorneys to communicate offers directly to opposing parties when possible. As we will see later in the chapter, one of the potential benefits of mediation is that it allows attorneys and clients to speak directly with

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opposing parties. But an attorney may request the opportunity to meet personally with the other side outside of mediation as well. An attorney may also consider providing a written rather than verbal offer to her negotiation counterpart. Although the ethical rules do not explicitly require an attorney to convey the written offer itself (as opposed to a verbal restatement) to the client,48 it is likely that the opposing attorney will provide the letter to her client.49 ✦ ✦ ✦ ✦ ✦

Meeting with the Decision Makers In the course of the environmental litigation described in Jonathan Harr’s book A Civil Action, plaintiffs’ attorney Jan Schlictmann repeatedly requested that Beatrice Foods’ attorneys, Jerry Facher and Neil Jacobs, allow Schlictmann to meet directly with the “decision-makers” for defendant Beatrice Foods: Schlichtmann . . . thought that Facher was acting in an arrogant, insulting manner, . . . [b]ut Schlichtmann didn’t let himself feel offended. The first goal in any negotiation was to keep talking, and talking to Facher was the first step to a real negotiation. “We don’t have to talk numbers now,” said Schlictmann. “Let’s get the decision-makers together first.” “You want the decision-maker?” said Facher. “I’m it. You want Mr. Beatrice Foods? He’s sitting right here. Tell me what you want. Make it reasonable, and I’ll accept, and we can get on with our lives.” “We can’t just throw numbers at each other,” said Schlictmann. “That doesn’t work. We need to set aside some time so we can discuss this—your people and my people—in a neutral place.” Facher grunted at this. “Why don’t you bring your clients up here? They’re the decision-makers, aren’t they? Let me hear them say no to a million dollars.” Schlichtmann demurred. They had reached an impasse.50 Although both Schlictmann and Facher rejected each other’s early attempts to meet with their clients, it can sometimes be wise to request or to agree to such meetings. While there are sometimes countervailing concerns, such as a client’s busy schedule or the fear that she will be inappropriately pressured by opposing counsel, allowing the client to hear directly from the opposing party or attorney may ultimately serve the client’s interests by better educating him as to the other side’s interests and arguments. Note that the plaintiffs did eventually settle their claims with the other major defendant, W. R. Grace, following a series of meetings in which the executive vice president and general counsel for W. R. Grace participated directly.

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At the same time, attorneys will also want to consider whether it is best not to speak directly to an opposing client but instead to have an opposing attorney or mediator convey the message. If an attorney is aware that an opposing client (perhaps a divorcing husband) is very angry and therefore likely to reject any proposal made by his wife or her attorney, it may be best to allow the husband’s trusted attorney to be the intermediary who delivers all messages.

When Should the Offer Be Conveyed? Once an attorney has a handle on her client’s interests and has worked to understand the interests of the other side, should she make the first offer? Negotiation research finds that making the first offer can result in an economic benefit by defining the starting point for negotiation.51 Recall that initial numbers can anchor judgments even when the initial numbers have no particular relevance and even in negotiations conducted by experienced negotiators (see chapter 4). Particularly when the value of the subject of the negotiation is unclear, making the first offer can focus the valuation of that item at a desired level. For example, imagine that a young painter is selling a work of art to a gallery. Because the painter’s work has only recently been discovered, its value is not yet clearly established. If the gallery starts the negotiation by offering the painter $300, the ultimate sale price will likely be much lower than if the artist starts the negotiation by demanding to be paid $20,000 for the work. Along these lines, a real-world art dealer recently bemoaned the fact that he once sold an Andy Warhol painting for $375,000 and just two years later saw other Warhol paintings being sold at auction for $26 million and $71 million.52 On the other hand, there can also be psychological benefits to being the party that responds to an opponent’s first offer. In particular, when a party lacks the information necessary to accurately assess the subject of the negotiation and set an ambitious anchor, waiting to hear the other side’s starting point can be valuable. Perhaps the other side’s initial offer will be more favorable than the demand that the responding party would have made. The responding party also has the opportunity to capitalize on both the anchoring phenomenon and the norms of reciprocity and fairness in defining the contours of the zone of agreement. Thus, if our artist starts the negotiation by demanding $20,000 for his piece, the gallery might respond by offering just $300. These two numbers will set the bounds of the bargaining range as the parties bargain toward an ultimate price. Similarly, to the extent that splitting the difference is an attractive heuristic for compromise (see chapter 8), defining the difference to be split can be beneficial. In addition, if the responding party can make it clear that in providing a counteroffer she is already giving ground on a particular issue, the opponent is likely to feel a pull to reciprocate by giving some ground as well (see chapter 6). To balance out these different psychological effects, we suggest that making the first offer is most sensible when the negotiator has enough information about the other side’s goals and interests to make an offer that is neither too disadvantageous nor ludicrously ambitious. Absent sufficient information to make a good first offer, it is better to wait to gather that information or to allow the other side to make the first offer.

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First Offers and Satisfaction Ironically, while making the first offer can result in greater objective gains, it can simultaneously result in lower subjective satisfaction. One study showed that the party making the first offer tends to suffer increased anxiety, presumably as a result of worrying that the first offer was not sufficiently ambitious.53 The negotiator may also want to try to anticipate whether his counterpart is likely to be particularly receptive to a proposal at a given point in time. For example, anticipated regret (see chapter 5) may be more salient at certain points, such as on the eve of trial or of a key ruling.54 In other words, a party facing the risk that the judge’s ruling on summary judgment could go against her may be particularly interested in settlement in order to avoid the future regret of having declined a settlement and then lost the case on summary judgment. Similarly, a prospective tenant’s offer to lease a major property may look particularly attractive to the owner at a time when many other tenants’ leases are about to lapse.

Countering Concerns About the Source of the Proposal We have seen that reactive devaluation (see chapter 5) causes people to value the content of a proposal less if it is put forward by the other side. To try to counter this phenomenon, lawyers should look for opportunities to put offers on the table indirectly. As we will see later in the chapter, mediation is an excellent process for dealing Please accept my reswith reactive devaluation because offers and acceptances ignation. I don’t want to belong to any club can be conveyed through the mediator. that will accept people Absent mediation, attorneys should think crelike me as a member. 55 atively about using other third parties, such as business —Groucho Marx associates or allies, as intermediaries to convey offers, as well as acceptances. In international political negotiations, neutral third countries are often used as agents in this fashion. Consider the approach taken by one negotiator:

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The chairman of the council . . . was a prominent figure in the Soviet hierarchy. At some council meetings he would adopt a very noncollaborative stance. This especially occurred when there was some flare-up of antagonistic relations between the United States and the Soviets. . . . In the midst of such episodes, I felt that I was (or would be) a victim of reactive devaluation. I therefore either refrained from making new proposals, waiting for a more propitious time, or engaged in a bit of creative manipulation: I would meet separately with a council member and in private discussions lead him to generate a variant of the proposal I wanted introduced. Coming from the council member of country XYZ, the proposal did not evoke the knee-jerk reactive devaluation that I wished to avoid.56

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Attorneys can also work to deflect reactive devaluation by clients on both sides by discussing potential deals with one another before making proposals to the clients. For example, the attorneys representing an athlete and a team in negotiations for a new contract might work with each other to develop a proposal—with each inquiring whether a particular figure would meet the other side’s needs and indicating that it might be adequate from his perspective—before running it by their clients. In the end, both the player and the owner might think that they and their lawyer, rather than the other side, had initiated the proposed salary figure and that the other side only reluctantly accepted it, thereby reducing the resistance that might otherwise have resulted from reactive devaluation.

The Dynamics of Negotiation Much negotiation consists of a back-and-forth “dance” that involves both explicit and subtler communication of information and the exchange of proposals. The ways in which negotiators interact with each other during this dynamic process significantly influence how proposals are shaped and agreements are forged.

Building Relationships Credibility is central to negotiation and can be earned or damaged over time. As we have seen, negotiators who trust each other tend to be more willing to disclose information to each other, to rely on information provided, to cooperate and search for mutually beneficial solutions, and to negotiate with each other in the future.57 Thus, attorneys must always remember the importance of building and maintaining a good reputation. Whereas musician Marvin Gaye reportedly said that “negotiation means . . . getting the best of your opponents,”58 psychologists and experienced negotiators might recommend taking a longer-term view. Attorneys can demonstrate their competence, and thereby enhance their credibility, by always being thoroughly prepared for a negotiation, by listening to their counterpart, and by providing reasons and explanations for their positions (see chapters 6 and 7). An attorney who is commencing negotiations with someone she does not know might also try to obtain a reference that would impress her counterpart. It is also important to build rapport with the negotiator on the other side. We have seen that negotiators who have had a chance to develop rapport with the other side tend to consider a broader range of options, are able to elicit more information, are more likely to reach agreement, and are more willing to work together in the future (see chapter 7). To take advantage of the power of liking (see chapter 6), a negotiator might draw on shared interests to create a bond (“how about that game last night?”), offer a compliment (“I just love those shoes you are wearing today— where did you get them?”), subtly mimic a counterpart’s posture (see chapter 7), or

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An Introduction Julie: Mary, I’m going to try to purchase a major tract of land from the city on behalf of my client, Vista Development Group. I’ve never dealt with anyone from the city before, have you? Mary: Sure, I deal with Lucinda Fingle over there all the time. We have a very good relationship. Julie: Would you be willing to introduce me or put in a good word for me? Mary: No problem. I’m always happy to do a favor for an old friend. I’ll set up a lunch. offer a warm drink to create a feeling of personal warmth (see chapter 1). At times an attorney can blend liking and reciprocity, perhaps by buying a counterpart lunch or treating her to a round of golf (see chapter 6). Finally, the attorney can try to use the negotiation process to achieve procedural justice (see chapter 8). People care deeply about how they are treated and want to voice their concerns, seek trustworthy processes, and be treated with dignity and respect. By attending to these concerns, an attorney can create more joint and individual gains for her client.

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Rapport and Deceit While there are many benefits of establishing rapport with a negotiation counterpart, there are also some pitfalls of which to be wary. In particular, one study demonstrated that “negotiators seeking to build or maintain rapport may be more likely to deceive their partners than to disappoint them with the truth.”59 However, the same study also showed that negotiators who are aware of this danger can better resist the temptation to be unethical.

Interpreting Counterparts’ Behavior At times, particularly in the dispute context, it can be quite difficult to reach agreement because each side is ready to assume that its view of the world is right and that the other guy has it all wrong. Confirmation bias, then, often leads us to become

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even more convinced of our own perspective. We have learned that we naturally see ourselves in more favorable terms than we see others and that we may attribute others’ mistakes to character flaws while we link our own to situational context (the fundamental attribution error). Hindsight bias can also sharpen divides as it may lead us to conclude that mistakes were, or certainly should have been, predictable when perhaps the problem was not so obvious in foresight (see chapters 1 and 4). Sometimes a client’s assumptions regarding a counterpart’s prior behavior may influence the client’s evaluation of a settlement offer.

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If you come to a negotiation table saying that you have the final truth, that you know nothing but the truth and that is final, if you are not willing to accept anything, you will get nothing. —Harri Holkeri60

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Consider the situation of Rubbermaid’s contract to supply their kitchen and bath products to WalMart. About a year into the contract Rubbermaid asked WalMart to reopen negotiations. Rubbermaid was having margin problems with the contract they had negotiated with WalMart. Why? The situational attribution is that the cost of their raw materials increased dramatically with the rise in oil prices over which they had no control. The dispositional attribution is that Rubbermaid did not negotiate a very good contract; they should have thought about this contingency and planned for it. The dispositional attribution casts aspersion on Rubbermaid’s management—a generalization of perceptions. Such perceptions at their most cynical might be that Rubbermaid intentionally avoided negotiating a contingency in the contract based on raw material costs because they hoped to take advantage of lower raw material costs and planned to reopen negotiations if raw materials became more expensive, which would have implications for WalMart’s willingness to renegotiate the contract and their negotiating behavior. In contrast, the situational attribution implies no bad faith bargaining but events outside of parties’ control make reopening negotiations perfectly reasonable.61

Remembering, and even delicately reminding one another, that behavior can be strongly influenced by the pressures of the situation can help forge agreement. Here, Walmart’s attorney might help Walmart think through how it characterizes Rubbermaid’s action and what implications that characterization has for Walmart’s negotiation position. Specifically, the attorney might encourage Walmart to consider the possibility that Rubbermaid acted in good faith. The attorney might also help Walmart to see that its willingness to reopen the negotiation should not depend exclusively on Walmart’s characterization of Rubbermaid’s past action. While the possibility that Rubbermaid acted in bad faith is a relevant factor to consider in deciding whether a future deal is advisable, Walmart might also decide that there is reason to believe that a similar breach is unlikely to recur or that the risk of continuing bad faith is not sufficient to scuttle a profitable deal. By using their own experience and credibility to emphasize that an opposing counterpart or attorney may have alternative and valid perspectives or motivations, attorneys can help their clients find mutually beneficial middle ground.

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In similar ways, it can be important to think carefully about how to understand the behavior of an opponent within the negotiation. As we saw in chapter 1, when a negotiator takes a tough position, we may attribute that behavior to the negotiator’s supposedly disagreeable personality rather than to the fact that the counterpart may simply have a good alternative to a negotiated agreement. In order to find out more about why counterparts have behaved in ways that the negotiator finds objectionable and to allow the negotiator to more successfully extract concessions, the negotiator can take the perspective of counterparts and remember that their behavior is influenced by their circumstances; that their misstatements may reflect memory limits rather than deceit (see chapter 2); and that their unwillingness to budge from a position may not reflect stubbornness but rather the effects of anchoring, optimistic overconfidence, a reluctance to abandon sunk costs, or a feeling that they have been disrespected (see chapters 4, 5, and 8).62 It also may be “beneficial for negotiators to encourage their partners to do some perspective taking.”63 Psychological research has found that negotiators tend to achieve better outcomes when they negotiate with someone who is able to take their perspective. Finally, it can be important to assess whether a negotiation counterpart is providing truthful information. As we saw in chapter 7, we often rely on unreliable cues to deception. However, attorneys can minimize a counterpart’s incentive to lie by being prepared and informed and by asking lots of specific questions. Attorneys can also gather information from other sources to check the accuracy of statements made by negotiation counterparts, watch for changes in counterparts’ manner that might signal deception, and listen carefully to the nuances of counterparts’ statements.64

Conveying Information As attorneys share information and attempt to persuade the other side, it is important for them to pay particular attention to principles of good communication. They should convey information in clear and concrete terms, avoid legalese, provide information in multiple ways, and use visual aids when helpful (see chapter 7). To express ourselves most effectively, it is important to become attuned to the perspective of our negotiation counterparts. Some psychologists have called this process tuning—taking account of our counterpart’s information, opinions, and knowledge in expressing our own message.65 Thus, just as any good communicator or teacher will try to take account of his audience, negotiators need to consider the background, culture, and experiences of their negotiation counterparts, tailoring the message accordingly. Sometimes, expressing emotions can be a useful way to convey information about positions or interests. For example, the expression of positive emotions can signal the negotiator’s openness to exploring a particular option, and the expression of disappointment in the counterpart can lead to cooperation.66 Expressing anger

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over a particular proposal can elicit concessions from the other side—particularly when the other side does not have good alternatives—by signaling to the opponent that the negotiator will not back down from her position.67 A negotiator in an international political context may angrily threaten war if his country’s wishes are not respected, and a union negotiator may angrily threaten to strike if management does not comply with some of the union’s demands. Even the appearance of apparent irrational anger can be useful in some situations. Game theorist Thomas Schelling pointed out many years ago that one driver can gain an advantage in the “negotiated” game of chicken by ripping his steering wheel off and throwing it out the window.68 ✦ ✦ ✦ ✦ ✦

Anger as a Double-Edged Sword? We have seen that expressing anger over a proposal can lead the counterpart to make concessions, but communicating anger can also have its perils. In particular, research has found that negotiators are more likely to deceive angry opponents, that the expression of anger can backfire and lead to less favorable outcomes when the consequences to the other side of nonagreement are low, that angry emotions can be contagious and lead to a desire to retaliate, and that negotiators are disinclined to negotiate again in the future with counterparts who have expressed anger.69

Silence, too, can be a means of signaling thoughts and intentions. Indeed, some cultures are renowned for their effective use of silence in negotiations.70 Silence in response to an offer may be interpreted as a lack of interest, or silence may elicit more information from the other side. Of course, as with all communication, silence can be misconstrued. Thus, it is often useful to inquire further into the meaning of silence. As we attempt to communicate with negotiation counterparts, it is important to remember the illusion of transparency, that is, we are not as adept at conveying our thoughts and emotions as we think we are (see chapter 3). In addition, we sometimes try to make our points indirectly, fearing that our words will cause defensiveness or anger or will leave too much of a trail. A major league ball club may not want to state in words that the aging star player is no longer worth $750,000 a year but may be willing to raise an eyebrow to express its feelings about such a salary proposal. However, the raised eyebrow that seemed so obvious may not be perceived or understood by the opposing party. Thus, it is important to pay close attention to how well a counterpart seems to understand what we have attempted to convey. Relatedly, we have seen that the mode of communication will have a big impact on a negotiator’s ability to convey information effectively (chapter 7). In-person

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negotiations will include body language, appearances, and physical setting. Written negotiations, by contrast, will focus negotiators more intensely on the meaning of words, while telephonic negotiations will include the tenor of those words. Negotiators may, in the interest of speed, efficiency, or clarity, prefer to conduct some negotiations in writing. However, they will need to be cognizant that the lack of personal presence may make rapport building more difficult, that misunderstandings may occur due to loss of nuance and temporal asynchrony, and that the creation of a paper trail can sometimes make it more difficult for negotiators to change their positions.

Presenting Options Negotiations typically involve discussion of a set of alternatives or options. We saw in chapter 5 that the frame in which potential decisions are presented often makes a difference in how options are perceived. Thus, the way in which attorneys present options and alternatives to those options can help them succeed in negotiations. Consider how the framing of various options would likely affect negotiation counterparts’ assessment of those options: •

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Highlighting the potential losses of an alternative will make that alternative more unattractive: If your client rejects this offer and goes to trial, you face a substantial risk that you will lose, and your client will end up with no car at all; whereas if you accept this offer, your client will be able to buy a nice used car or to use the settlement to lease a BMW just like the one that he lost in the accident. Characterizing an option as the standard way of doing things can play to a counterpart’s bias in favor of the status quo and thus make that option more appealing.71 A negotiator representing a buyer, for example, might suggest that it is “standard practice” in the industry for the seller to pay all shipping costs or for the seller to take on the risk that the product will be damaged during the course of shipment. Providing a proposed contract as the basis for negotiation can allow the negotiator to capitalize on the pull of default provisions. Counterparts will be less likely to negotiate changes to terms that seem to be part of a standard form. Drafting the contract can also provide a significant advantage because although nondrafters may focus on certain key contractual provisions, such as price, they tend to focus less on less prominent, but potentially important, provisions such as those pertaining to timing, scope, or publicity.72 Recognizing penalty aversion and presenting a price differential as a bonus or discount, rather than a penalty, will help to make that choice attractive. Similarly, imposing or highlighting an effective penalty if the offer is rejected, such as an increase in closing costs or interest due, can push the other side toward agreement.

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Disaggregating the pieces of the offer that the counterpart will find attractive will highlight these gains, and aggregating the pieces of the offer that the counterpart is likely to find less attractive will minimize the sense of loss. For example, in making an offer regarding the sale of a business, the negotiator should separately highlight the attributes that the buyer will likely find positive, such as an early closing date, a reasonable price, and the seller’s willingness to provide names of existing customers. If there are aspects of the offer for which the buyer might have less enthusiasm, such as the need for a formal letter of credit, an indemnification clause, and limitations on the permissible scope of the business, these should be aggregated into a single request.

Simultaneously proposing multiple options can also be a useful technique for providing a context within which options are to be selected. As we now know, the perceived value of a proposal may vary substantially depending upon how it compares to other options (see chapter 5). Options can look different when they are considered in isolation than when they are considered in comparison to other options. Negative features tend to loom particularly large when we are looking to reject options, and positive features tend to be salient when we are choosing. Furthermore, we know that people tend to be attracted to a middle option and will be drawn to the better of two similar options as compared to a third, dissimilar option. Of course, in employing any of these strategies, an attorney must be careful not to be perceived as manipulative or even dishonest. For example, a supposed penalty that has been created only to encourage closing a deal might cause ill will and thereby backfire. As always, things that are good in moderation may not be good in excess.

Persuading and Eliciting Concessions

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To be effective as negotiators, we must convince others Negotiation conto make desired concessions, to help us to devise creative sists of assessment, persuasion, and options, and to accept the agreements that we believe exchange. serve our client’s interests. In addition to thinking about —Robert J. Condlin73 how to most effectively present options, it can be useful to draw on a range of persuasive tools to achieve these ends (see chapter 6). Negotiators are often highly motivated and able to focus on the relevant issues. Accordingly, the attorney can use her advocacy skills—highlighting the strengths of her position and the weaknesses of her opponent’s position—to persuade a negotiation counterpart that a particular resolution makes sense. In addition, providing reasons or justifications for positions can be quite persuasive.74 Although the logic of argumentation will come naturally to attorneys, it is also important to think carefully about how to make those arguments the most persuasive.

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Concessions as Losses and Gains Because losses loom larger than gains (see chapter 5), it is likely that negotiation counterparts will differently assess the value of the same concession. The negotiator making the concession will see the concession as a loss—something she is giving up—and is likely to value it more highly than the negotiator on the other side who is the beneficiary of the concession and sees it as a gain. Assisting the parties to objectively value concessions, therefore, can help to forge agreement.

Good persuasion involves simple, clear, direct communication and arguments that are tailored to the circumstances and interests of the other side (see chapter 6). For example, rather than state, “It is well known that juries in our jurisdiction never award punitive damages to plaintiffs in disability suits,” it may be more effective to say, “Because your client did not come across as very sympathetic in her deposition, it is highly unlikely that a jury in our jurisdiction would award her punitive damages.” Similarly, it can be helpful to remember that people from different cultures or holding different perspectives may not be persuaded by the same arguments. Thus, arguments about the importance of protecting family relationships or ensuring future amicable dealings will work better in some contexts than in others. Effective negotiators also employ a range of indirect persuasive strategies to prompt concessions by the other side (see chapter 6). For example, drawing on the psychology of reciprocity, an attorney might highlight his own concessions for the opponent so that the opponent feels compelled to make concessions as well. Because a concession is likely to seem more significant to the side that makes it than it does to the side that receives it (see chapter 5), it can be helpful to identify the concession and draw attention to its import. The negotiator can also try to evoke reciprocation [T]he vast majority of writing on negotiaby employing the door-in-the-face strategy, that is, foltion has ignored the lowing a rather extreme offer or demand with a more element of interpermodest proposal (see chapter 6). Alternatively, the negosonal influence. Since tiator can try to stimulate reciprocal concessions by laynegotiators spend a great deal of time trying out an initial offer and then immediately improving ing to persuade each that offer (the that’s-not-all technique) (see chapter 6): other to agree to their desired outcome, Joe, my client really wants to seal the deal with your client this seems a glaring today if at all possible. Thus, we are not only willing to omission. provide you with the premises for the discounted rate of —Deepak Malhotra & $2,200 per month for the next two years, but we are also 75 Max Bazerman

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willing to throw in the cost of renovations, up to a limit of $5,000.

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Savvy negotiators can also capitalize on the psychology of consistency and commitment to persuade others to their position (see chapter 6). For example, the attorney can use the foot-in-the-door technique to get a counterpart’s initial commitment to a modest proposal or concession and then try to parlay that commitment into the completion of a larger deal. Similarly, in negotiating a transaction, the attorney might try to broker agreement on the broad outlines of a deal, hoping to generate commitment to the deal such that later decisions on the finer points will be made in ways that are consistent with that initial agreement. Knowing that people have difficulty moving away from their publicly expressed commitments, a savvy negotiator might look for prior expressed commitments that could be helpful or ask for a counterpart to agree on some general principles that could be used to forge an agreement. For example, a plaintiff’s attorney suing a corporate defendant might cite to general language in the corporation’s mission statement that the company seeks to enhance public health. A defense lawyer attempting to negotiate a plea agreement might reference a prosecutor’s prior statement that incarceration imposes high costs on taxpayers and society as a whole. Applying the same principle, good negotiators will avoid pushing their counterparts to make statements or bottom-line positions from which it will be hard to move away. Negotiators might also try to use the traditional low-balling approach by first obtaining agreement to one set of terms and then backing away from those terms to some degree (see chapter 6): Mary, I have just a few provisions that my client has asked me to add to the deal that we worked out yesterday. First, Human Resources insists that the terms of our agreement need to remain confidential. Second, in-house counsel has asked me to ensure that your client pay any taxes that the IRS might assess on the settlement were they to do an audit. I think it is highly unlikely that the IRS would poke into this. I assume you have no problem with those minor additions to our agreement?

This approach can be effective in the short run. Needless to say, however, developing a reputation as an attorney who routinely makes such “minor” additions can wreak havoc with the lawyer’s credibility and diminish the effectiveness of this strategy. Negotiators might also try to obtain agreement by imposing a deadline, evoking concerns about scarcity (see chapter 6). For example, the negotiator might let a counterpart know that a particular offer can only remain on the table for a limited period of time: Attorney: My client, Linda, would like to lease these premises to your client, Bob. Frankly, Linda likes Bob and likes the idea of his running a skateboard concession in the very spot where Linda’s dad used to run a similar business. However, Linda also needs to get this property leased out as quickly as possible in light of her own financial situation, so if Bob cannot accept this offer by tomorrow afternoon, Linda is going to need to make a deal with Fred, who is interested in leasing the premises to open a tattoo parlor.

Fearing the loss of the other side’s interest, the lessee may go ahead and commit to a deal even though it is less attractive than he had hoped. Of course, invoking scarcity

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[K]eeping negotiation deadlines secret is a mistake. . . . Negotiators obtain better outcomes when they tell their opponents about their final deadlines. Moreover, negotiators who keep their deadlines secret increase the risk of an impasse. —Francesca Gino & Don Moore76

must be employed cautiously because a savvy counterpart may successfully call the bluff: Mike, you have said that this offer is “take it or leave it” and that you will take it off the table by the end of the day. However, my client and I don’t like those games. Why can’t you give us a few days more to consider your offer?

Ironically, given the power of deadlines, we often fail to inform our counterpart of our own time constraints for fear that knowledge of our predicament will give the other side an advantage. Disclosing our deadlines, however, informs the other side that their time is short as well. Indeed, recent studies have found that negotiators who disclose their deadlines to the other side achieve better-negotiated outcomes. Thus, it can be persuasive to be forthcoming with a counterpart about the existence of a deadline.77

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Misperceiving the Impact of Deadlines Externally imposed deadlines, such as the expiration of a tax regulation that allows a particular deal, impact both sides. Each negotiator, however, tends to believe that the pressure of such deadlines will harm him more than it will harm the other side. Under this impression, a negotiator may hurry to reach agreement and accept less advantageous terms. Focusing on how the deadline might also impact the counterpart can moderate this misperception.78

Appeals to authority or social norms can also be persuasive (see chapter 6). A negotiator, for example, can cite to the authority of someone who is respected or to a social norm favoring agreement: Joe, I really hope we can close this shopping center deal today. Bert Jones [chairman of the local chamber of commerce], whom I know we both respect very much, told me just yesterday that he thinks it would be very beneficial to the city’s business community if we could clarify the status of this property that has been vacant for so long.

Recognizing the tendency to overweight sunk costs (see chapter 5) can also help the negotiator to be persuasive: Your client has already invested more than $2 million in this project. It would be a real shame to let all that money go down the drain. I strongly urge you to invest the additional million, which will help us to make this project successful and help you to recoup your investment.

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And, finally, given the nature of reactive devaluation (see chapter 5), the attorney may want to seem to resist or take time to think about a proposal rather than endorsing it too eagerly. If the other side believes that a negotiator has accepted the proposal with reluctance, it may be less likely to devalue the proposal. Feeling as though it is getting a fair deal will increase the other side’s satisfaction and likely their compliance and willingness to negotiate in the future.

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My father said: “You must never try to make all the money that’s in a deal. Let the other fellow make some money too, because if you have a reputation for always making all the money, you won’t have many deals.” —J. Paul Getty79

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Emotions can also be central to negotiations. As we have seen (see chapter 3), emotions can affect cognitive processing, convey information, cause an emotional reaction in a counterpart, or operate as an incentive for a counterpart (who might, for example, strive to avoid making someone angry).80 Some take the position that negotiators should try to take the emotion out of negotiation. For example, Howard Baker, former Senate majority leader and chief of staff to President Ronald Reagan, reportedly stated that “the most difficult thing in any negotiation, almost, is making sure that you strip it of the emotion and deal with the facts.”81 Similarly, Leonard Riskin observes that “[n]egotiators—especially those trained in law—commonly . . . try[] to exclude emotions from negotiation and to focus solely on ‘objective’ factors.”82 Those who would exclude emotion from negotiation seem to strive for a world in which negotiators take on the character of Mr. Spock of Star Trek fame. Of course, this is impossible. However, although emotion can be potentially problematic, it can also be quite helpful to negotiators. Recall that positive moods are more conducive to bigpicture creative thinking than are neutral or sad moods (see chapter 3). Thus, it is not surprising that studies have shown positive moods are more conducive to information sharing and collaboration in negotiation and that happier negotiators achieve greater joint gains. Less intuitively, studies have also shown that happier negotiators also achieve greater individual gains in integrative negotiations than It is becoming increasingly clear that in do negotiators who express more negative or neutral order to become a affect.83 Thus, at least in some contexts, it can be worthtruly skillful negowhile for negotiators to try to put themselves and also tiator, it is important not only to employ their counterparts in a good mood. Conversely, since cognitive strategies those in sad moods tend to focus on the details, it can and skills but also be wise to capitalize on sad or neutral moods to review to be emotionally the fine print before finalizing an agreement. Furtherintelligent. —Delee Fromm84 more, we have seen that expressing anger can sometimes result in more favorable outcomes.

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Sometimes, however, emotions such as anxiety can undermine a negotiator’s performance.85 And negotiators must be wary of negative emotions that can spiral out of control and lead to impasse in a negotiation that might otherwise have succeeded. Even when impasse is avoided, experiencing anger in a negotiation can result in spiteful behavior and less concern for the counterpart’s interests. This can lead to a less accurate view of what the other side needs to reach agreement and, ultimately, less joint gain.86 To avoid such situations, negotiators must become adept at managing emotions—their own and those of their counterparts. Thus, a litigator who knows that fear may cause her to shy away from trial can remind herself not to cave in as the trial date nears and can seek to bolster her own resolve by bringing in a more confident co-counsel for moral support. A transactional attorney who is aware that she tends to be overly excited by the prospect of closing deals can try to calm herself down prior to negotiation. A negotiator who is anxious about negotiating can engage in some reality testing to come up with a realistic assessment of the risks and possible responses.

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A Fit of Pique Elected officials are no more immune to their own emotions than anyone else. In fact, a politician’s pique purportedly led to a temporary shutting down of the U.S. government: In 1995, President Bill Clinton and a number of American dignitaries traveled to and from Israel on Air Force One to attend the funeral of Israel’s Prime Minister, Itzak Rabin. Newt Gingrich, then Speaker of the U.S. House of Representatives, was on board and hoped to use the long flights to negotiate the budget with President Clinton. According to President Clinton’s spokesperson, however, he “just didn’t feel like negotiating the budget with the Speaker” after a long day hosting former presidents, secretaries of state, and congressional leaders. Nonetheless, Gingrich felt offended by Clinton’s unwillingness to negotiate. To make matters worse, when the plane landed at Andrews Air Force Base, Gingrich had to exit through the rear door, rather than joining the President and others who left through the forward door. In reaction to Clinton’s behavior, Gingrich admitted, he deliberately added provisions to a spending bill that he knew would prompt a presidential veto and precipitate a “shutdown” of the government. “This is petty, but I think it is human,” Gingrich explained. “You just wonder: Where is their sense of manners? Where’s their sense of courtesy?” Newt Gingrich has plenty of company in succumbing to strong negative emotions in situations of conflict. . . .87

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The psychological studies of mood in negotiation demonstrate that mood is surprisingly easy to influence, [M]anaging emotions even by small acts such as offering a cup of coffee or does not mean removing the emotional a cookie, playing pleasant music, or pumping in good aspect of negotia88 smells. Similarly, making polite conversation and givtion. Rather, it means ing out compliments are easy ways to improve another developing a set of person’s mood. Techniques such as counting backwards strategies to effectively monitor, shape, from ten, taking a break, tensing and relaxing leg musand influence our own cles, or thinking about a more peaceful scene can help a and others’ emotional negotiator get his own negative emotions such as anger expressions so as to better achieve our under control. And we have seen (see chapter 3) that goals in negotiations. reappraising a situation is often the best way to take the —Leigh Thompson edge off intense emotion. et al.89 Negotiators can also try not to provoke undesirable emotions such as anger in a counterpart. For example, in expressing disappointment with a counterpart, the negotiator might be careful not to be accusatory or to cast blame unnecessarily. Instead, the negotiator can try to share his own feelings, ask the counterpart to share her perspective, apologize for any misunderstanding, and try to help the counterpart save face.90 Being aware that emotions can be contagious (see chapter 3), we must sometimes rein in our tendency to mimic when that would be unproductive. At times, an attorney may be able to strengthen her position for the valueclaiming portion of the negotiation by portraying her client as somewhat angry or extreme while still seeking to maintain positive emotions in the negotiation.

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Attorney Jones, we’ve worked together successfully before, and I am quite confident that we can work together very successfully in this case as well. Like you, I am completely convinced that it would serve both our clients’ interests to resolve this matter amicably and quickly before either party runs up more legal bills. Nonetheless, you do need to know that my client feels very strongly about what has happened to her and her family as a result of actions she attributes to your client. She is pretty angry, and we’re going to have to be attentive to that as we strive to work this matter out.

Responding to a Counterpart’s Proposal Once an attorney has received a proposal, psychology also provides guidance regarding how to convey the proposal to the client, how to evaluate it, and how to respond. The attorney must be conscious of how the approaches employed by his negotiation counterpart may make a proposal look unduly appealing.

Conveying Offer to Client Although the Model Rules of Professional Conduct require that attorneys convey all settlement offers to their clients,91 they do not describe how attorneys should convey offers

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to their clients. Yet, we have seen (in this chapter and in chapter 10) that the manner in which proposals are conveyed to clients will inevitably have a huge impact on whether the client finds them attractive. Even an attorney who aspires to allow clients to make their own choices, free of attorney influence, cannot avoid influencing client choices. Thus, as the attorney considers how to convey an offer to her client, she should think about her own vision of the appropriate attorney-client relationship and remember that her method of conveying proposals will have a significant impact on the client. Recall, for example, the reactive devaluation phenomenon that may cause a client to resist or reject a proposal simply based on its source (see chapter 5). An attorney might counter this phenomenon by letting the client know that an agreement was forged jointly. In addition, attorneys can help their clients direct their focus to the merits of any proposal rather than to the source from which it came.

Evaluating the Offer In addition to conveying an offer to the client, the attorney will typically help the client evaluate that offer by comparing it to her other available choices. The client’s BATNA (best alternative to a negotiated agreement) may be an anticipated trial, an alternative transaction, or no transaction at all. Yet, while it might seem simple to compare an offer to its possible alternatives, we have seen that a variety of psychological phenomena can make this task difficult. As an initial matter, negotiators should be careful to resist the anchoring effects of the other side’s proposal, articulating a preliminary counterposition prior to hearing its first offer and focusing on the other side’s likely BATNA or bottom line in order to call to mind reasons why such an offer might be extreme. This variant of the consider the opposite (see chapter 1) strategy has been shown to be an effective means of limiting the anchoring effect of first offers.92 It is inevitable that we will not have complete information about a proposal, the alternatives, or how the decision will impact us in the future. How should the attorney and the client deal with these informational lacunae? We learned in chapter 5 that we may delay decisions while we seek information that is not logically necessary. On the other hand, time pressures can cause us to process information less systematically than we would with more time; and some of us—probably many lawyers— have a high need for closure, which may lead us to make decisions too quickly. If an attorney recognizes that she (or her client) is seeking too much information, she should remind herself and her client that they will never have perfect or complete information. But if, on the other hand, the attorney realizes that she or her client is acting too quickly or without adequate information, she might try to slow down the decision-making process. In trying to compare a proposal to its alternatives, the attorney should also be aware that both clients and attorneys are likely to be affected by positive illusions (such as overconfidence and egocentricism), availability (being unduly affected

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by prior, particularly memorable, litigation outcomes, settlements, or deals), the affect heuristic (relying on gut-level impressions or feelings), and the representativeness heuristic (being overly impacted by anecdotes and ignoring relevant quantitative information) (see chapter 4). One additional challenge is the need to balance truth and accuracy on the one hand with rapport on the other (see chapter 10). Inevitably, clients may feel a bit let down, if not sold out, when their attorney points to the downsides of a favored option or emphasizes the need to compromise, but the attorney has an obligation to help clients thoroughly analyze all aspects of relevant proposals. Each of these influences on judgment can be countered, in part if not in whole, by being more systematic in evaluating the alternatives. Consider Barb, a plaintiff who injured her back after she slipped on the highly waxed floor of a Las Vegas casino. She was out of work for a month and alleges substantial continuing pain but has now returned to work. Barb is inclined to reject the casino’s offer of $35,000 because she has read about cases in which plaintiffs in personal injury cases were awarded millions of dollars in damages. She points, in particular, to “that McDonald’s coffee-spill case.”93 To counter this very available example, Barb’s attorney can explain how the facts of her case differ and provide Barb with statistics describing jury verdicts and settlements in cases that are more similar to hers. The attorney might also tell Barb that certain verdicts tend to get a lot of publicity precisely because they are so unusual but that such cases (including the McDonald’s case) are often reversed or reduced on appeal or settle for much lower amounts. Barb’s attorney can use similar techniques to help Barb navigate away from other anchors, such as a prior settlement demand, that may have come up earlier in the course of the negotiation. It can also be helpful to systematically consider each element of the case. Imagine that to prevail on her claim against the casino, Barb would need to show that (1) the casino staff was negligent, (2) the parent corporation she is suing was responsible for the act of the subsidiary management company, and (3) the back injury was due to the fall and not a preexisting injury. The plaintiff would also have to establish the nature of her damages and prove that the damages related to the injury that took place at the casino. The plaintiff’s attorney should try to work carefully with the client to come up with objective estimates of—rather than intuitions about—the probability of prevailing on each point. In addition to assessing the likelihood of success on individual elements of the case, it can be useful to get a better understanding of how all of the pieces of the case fit together. For example, if the probability of prevailing on each of three independent issues is 60%, the probability of prevailing on all three is just 21.6% (that is, 0.6 ⫻ 0.6 ⫻ 0.6). A client or attorney may have an intuition that the odds are fifty-fifty that they will prevail at trial. However, once the case is broken down into its elements and estimated probabilities assigned to those elements, the client or attorney may realize that the overall odds are worse than she originally thought. As we saw in chapter 10, using decision trees to break down the alternatives can also be helpful, particularly in complex cases.94 A tree might show, for example, that

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Evaluating a Settlement Offer Attorney: Now that we’ve received an offer of $35,000 from ABC Casino, we need to figure out how that offer compares to what we think might happen at trial. Client: Well, I can tell you that right now. The offer stinks, and we would do a whole lot better if we went to trial. Attorney: I appreciate that you have that initial thought, and I, too, want to believe that you would do a lot better if we took the claim to court; but the hard lesson that I’ve learned over the years is that we’ll ultimately be better off if we try to do a close analysis of the odds of success rather than just go with our gut. I think I do my clients a real disservice if I take them to court when a careful analysis might actually lead us to conclude that it is better to take a settlement offer. Does that make sense to you? Client: Yeah, I guess. So what do we do now? Attorney: What I suggest is that I explain all the different pieces of our claim and give you my sense of the chances that we can prove each part of the claim based on the evidence we have so far and based on my knowledge of how other cases have proceeded. Does that work for you? Client: OK. Attorney: So, one thing we have to show is that the casino was negligent or careless in the way it handled the waxed floor. It may seem obvious to us, but there are some cases in which people have made a similar claim but a jury found no liability. Sometimes a jury finds that the person who slipped should have been looking at the floor more carefully, walking more carefully, or wearing different shoes. What I did was try to collect a number of similar cases from our jurisdiction and from around the country. Considering how those cases played out and given that it seems that you are the only one who slipped on the floor that night, my sense is that we have roughly a 60% chance of establishing this piece of our case. Client: OK. Is that it? Attorney: No, now we also need to think about our chances of succeeding on the other pieces of our claim. . . .

Barb could lose her case on summary judgment and recover nothing (an estimated 10% probability). If summary judgment is denied (an estimated 90% probability), then Barb might either prevail (an estimated 20% probability) or lose (an estimated

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80% probability) at trial. If Barb does win at trial, her total recovery is estimated to be $200,000. The decision tree displays these possibilities and shows the plaintiff’s expected recovery to be $36,000.

Litigate

No Summary Judgment Granted 90%

Summary Judgmant for Defendent 10%

Plaintiff’s Decision

P Wins at Trial 20% $200,000 P Loses at Trial 80% $0

Expected Value of Litigating $36,000

Settle

Figure 11.1: Decision Tree

Given confirmation bias, the fundamental attribution error, and naïve realism (see chapter 1), attorneys may have to push themselves hard to think carefully about all of the strengths and weaknesses of the case. Attorneys who work in close-knit groups or offices may be impacted by a group form of the fundamental Because prosecutors attribution error, leading some to call this the ultimate and defense attorattribution error.95 The attorney’s motives—such as a neys are not unaffilidesire by prosecutors to imprison criminals, a desire ated individuals who come to each case by public interest attorneys to help their clients, or a without any precondesire of defense attorneys to help their clients better ceived notions . . . but themselves—can heighten these tendencies.96 Thus, it is instead are members important to keep in mind the disagreeable adjudicaof well-defined groups who are likely to have tor in order to give due weight to the arguments on the well-formed stereoother side (see chapter 4). In addition, it can be helpful types . . . about the to solicit independent perspectives on the strengths other group’s behavand weaknesses of the client’s position, remembering ior, they are more that aggregating such estimates can improve prediction likely to process information in a biased (see chapter 4). In a larger case, the attorney might also manner. use surveys or mock juries to try to get a sense of how —Rebecca Hollander-Blumoff97 others view the case.98 While the preceding discussion has focused on psychological factors that may push a client to reject an agreement she would do better to accept, we have also seen that psychological factors can sometimes tempt clients to accept offers they should reject. Attorneys discussing offers with their clients should pay attention to how phenomena such as framing, reactive devaluation, escalation of commitment, scarcity, apologies, anchors, defaults, reciprocity, liking, and the grouping of options can influence evaluations of particular offers (see chapters 4, 5, and 6). Similarly, the

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attorney should pay attention to how the client perceives the offer in terms of how it compares to offers made to similarly situated parties and whether it seems fair according to some external criteria (see chapter 8). If the attorney believes, for example, that a negotiation counterpart is trying to attract his client to an offer by emphasizing certain aspects of the offer but deemphasizing other, less attractive aspects of the offer, the attorney can remind the client to also focus on the less obvious aspects of the offer. Attorney: I know it is tempting to jump on this offer because Confections Inc. is offering a very nice price for your property. However, before you agree, I suggest you consider some other aspects of the offer as well. For example, are you confident that Confections Inc. is sufficiently profitable that it will be able to pay the portion of the price that will fall due in a year? And are you sure that the use that Confections Inc. has in mind for the property will not cause any harm to your adjacent operations?

Similarly, if the attorney sees that an opponent has used framing or introduced extraneous options to make an offer particularly attractive, the attorney can show the client how the offer can be reframed, or considered in a different context, in which case it may become somewhat less attractive. Attorney: They have offered us three different options: (1) we can sell the painting, and you and Berta can divide the proceeds; (2) you can accept $5,000 from Berta and give her the painting immediately; or (3) you can keep the painting for a year and then provide it to Berta once she has paid you $5,000 over the next year. Two of the options involve Berta paying you for the painting, either now or over time. Berta seems comfortable with either payment plan, and we haven’t identified any advantages to you of keeping the painting for a year and delaying payment; so it seems as though between those two options, the immediate payment would be preferable. Thus, I’d like to propose that we set the extended payment option aside and focus carefully on the other two options. Does that make sense to you?

Attorneys can also help clients to see how other contextual factors influence decisions, to view offers from various perspectives, and to approach decisions in different ways. For example, it is predictable that a defendant will object to “paying off” a plaintiff whom he feels does not have a strong or valid claim. Thus, defense counsel may explain that the defendant should not think of the potential settlement as a payment to the plaintiff but rather as the defendant’s purchase of financial security (eliminating the risk of a hefty verdict), peace (no more squabbling and picking sides), and full use of her own and others’ time (some of which otherwise would have been devoted to litigation defense). Thought of in these terms, the proposed settlement may seem more palatable. There are, of course, many other ways that counsel might characterize a proposal to make it more or less attractive to the client. We have also seen that clients may find it tricky to evaluate offers involving future conduct or payments (see chapter 5). Attorneys can counsel their clients

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about the difficulty in valuing future payments and help the client with these calculations. Some clients will not realize that in most economic environments, a promise to pay $10,000 in a year is worth less than a promise to pay $10,000 in a month. The attorney might even be able to help the client understand the ways in which present and future payments can be converted into one another. For example, the attorney might note that a proposed stream of future payments could potentially be converted into an immediate payment by a bank. Furthermore, attorneys might teach their clients how to use smartphone applications to make present-value calculations. In addition, if a counterpart has asked the attorney’s client to commit to something that will occur in the future, the attorney can remind the client that an action that may sound easy because it is not immediately required may appear more difficult when the future arrives. To ensure that accepting the offer would actually serve the client’s best interests, the attorney should help the client carefully analyze the proposal in context by, for example, pointing out that the fact that the opposing attorney seems to be a nice guy should not be relevant, that reciprocation is not always appropriate, that others’ acceptance of similar proposals does not mean the proposal would necessarily be a good deal for the client, that the urgency or scarcity imposed by a deadline may be artificial, or that sometimes a client’s best interests are served by not reaching an agreement. Similarly, the attorney will want to help the client think through whether an apology is genuine and whether that matters to the client,99 as well as whether other aspects of the settlement are satisfactory to the client.

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Analyzing an Apology Although Hospitals Inc. has issued an apology to the attorney’s client, the attorney recognizes that it may not be sufficient. Attorney: As you heard, the president of Hospitals Inc. has apologized profusely for the way you were treated in the hospital waiting room and has assured you that changes will be made in hospital policy to ensure that no one in the future is cursed at by hospital security personnel. Perhaps you will want to ask for more specifics on the training or other measures that the hospital will implement?

Attorneys and clients should formulate specific implementation intentions to help them resist undue pressure to accept offers (see chapter 5). For example, the attorney and the client might decide in advance that they will not agree to pay more than a certain amount without doing substantial analysis or consulting others. Similarly, they might agree never to accept an offer without taking at least forty-eight

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hours to fully consider the terms being proposed, allowing themselves time to work through their initial emotional reactions. Finally, it is important to recognize that, in considering offers, clients will not always reach the decisions that attorneys think are best. Criminal defense attorney Abbe Smith has stated that she would use virtually any tool of persuasion short of breaking her clients’ arms to encourage them to take a plea agreement that she thinks serves their best interests.100 In her book, Case of a Lifetime, Smith tells the story of Kelly, a client who chose to go to trial on felony murder charges rather than plead guilty to a lesser charge. Kelly could not imagine that a jury would find her guilty when she was innocent. But she was found guilty of felony murder and sentenced to life in prison. After Kelly had served ten years in prison, the trial court granted her habeas petition. The state appealed, but Kelly was offered a chance to plead guilty and be sentenced only to time served (meaning that she would be freed from prison). However, according to Smith, Kelly refused the plea offer. She told [her attorney at the time] that she couldn’t do it, couldn’t plead guilty to a crime she did not commit. The crime was too horrible. She didn’t think she would be able to live with herself if she admitted having taken part in a senseless, brutal murder of a teenager that she had had nothing to do with. She didn’t think she would be able to look herself in the mirror. She didn’t think she would be able to face anyone she knew.101

The appeals court reversed the trial court’s grant of the habeas petition, and Kelly remained in jail for nineteen more years. From Smith’s perspective, Kelly should have taken the plea. However, Kelly maintained that she would never have taken a plea.102 Each attorney must ultimately struggle with how hard to push a client to take the attorney’s advice. Attorneys’ conclusions will vary based not only on their model of lawyering but also on how confident they are that they know what is best for their clients.

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Fee Negotiation At the same time the attorney is helping the client decide whether and how to enter into an agreement with the opposing party, the attorney and the client may also be thinking about renegotiating the terms of their own fee agreement. An attorney representing a claimant on a contingent fee basis may, for example, agree to reduce her fee if the client agrees to accept a particular settlement offer. The attorney may have calculated that she is better off taking a smaller percentage of the proposed settlement rather than putting additional resources into the case. Conversely, the attorney who prefers to go to trial may agree to cut her fee if the client rejects the settlement.103 Clearly, such downward fee adjustments can influence the client’s interest in the proposed agreement. While we will not discuss the ethical or practical

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implications of such discussions, we do see one psychological concern. In opening any such discussions, the attorney needs to beware of anchoring the client on the idea of a reduced fee. If the parallel negotiation does not result in an agreement that includes a reduced fee, the client may see paying the original fee as a “loss” and react adversely.

Mediation With the growth of both court-mandated programs and contractual mediation provisions, it has become increasingly common for attorneys to use mediation to help their clients resolve disputes and negotiate agreements. Yet, taking on the task of representing clients in mediation may require attorneys to adopt a different mindset Mediation is a process than the adversarial rule-oriented mindset with which in which an impartial third party acts as a many are familiar. As Leonard Riskin famously put the catalyst to help othmatter, “[t]he philosophical map employed by most ers constructively practicing lawyers . . . differs radically from that which a address and perhaps mediator must use.”104 resolve a dispute, plan a transaction, or Attorneys who are familiar with psychology can define the contours of be particularly effective as representatives in mediation. a relationship. As mediation is essentially facilitated negotiation, it is —Carrie J. MenkelMeadow et al.105 no surprise that many of the skills that will most help attorneys effectively represent clients in mediation are those already discussed in this chapter. There are, however, some ways in which mediation is different than nonfacilitated negotiation. The presence of a mediator, who can help parties and attorneys examine their own views and communicate with one another more effectively, is critically important.106 The mediator may work this magic not only in joint sessions but also as he meets separately with each side in private caucuses. In addition, while represented parties often do not directly participate in legal negotiations, they are more likely to participate in mediation. These features of mediation offer a variety of psychological opportunities and also present a few challenges.

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Psychological Opportunities Offered by Mediation We have seen that prospects for agreement may be impeded where one or both sides are affected by correspondence bias and naïve realism, that is, assuming that actions are motivated by ill will or bad character rather than driven by situational constraints or differing perceptions (see chapter 1). Conflicting memories can also pose an impediment to agreement. It can be difficult to find common ground when both sides are “sure” that their own memories of relevant events are correct.

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But we have learned (see chapter 2) that memories are not as good as we tend to think they are. Mediators can use a variety of techniques to get disputants to question their assumptions. Most directly, mediators can expressly question whether the attributions that one side is making are correct. As law professor Russell Korobkin notes, the mediator might concede that it is possible that the adversary is a malicious, obnoxious jerk but suggest that the mediator finds another hypothesis more plausible—and then provide an account of the events that is consistent with the observed outcome but attributes a more situationally-dependent motivation for the adversary’s actions.107

Mediators can also ask disputants why they are sure that their view of the facts or the opponent’s motives is correct. By requiring disputants to think through their assumptions, the mediator may lead them to question their validity. Similarly, by having disputants and their attorneys describe their views to one another, the mediator can help them see that alternative views are possible. To the extent that the confidentiality of mediation communications is afforded by statutes or contract as well as by the evidentiary rules that cover all settlement discussions, participants may feel freer to express their interests and concerns more openly than in other settings.108 Similarly, as we have seen, prospects for agreement may be limited where one or both sides are overly optimistic or anchored to unrealistic aspirations (see chapter 4). As we have discussed, it can be challenging for attorneys to be completely objective about their own client’s case, and they may also hesitate to emphasize the weaknesses

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Seeing Different Perspectives In a mediation that mediator Frank Scardilli handled between Sisters of the Precious Blood and Bristol-Myers Co., the Sisters accused Bristol-Myers of marketing infant baby formula in an unethical and dangerous manner which they believed contributed to serious illness and death of infants. Bristol-Myers, by contrast, viewed the Sisters as unduly self-righteous and regarded itself as highly responsible and ethical. Scardilli notes: I struck often at the theme that it was dangerous to assume that one with whom you disagree violently is necessarily acting in bad faith. Moreover, I stressed to both that I had become fully and firmly convinced that each of the parties was acting in compete good faith, albeit from a different perspective. I strove to get each to view the matter through the eyes of the other. . . . After extensive mediation—and after Bristol-Myers voluntarily changed certain of its practices—the matter settled.109

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in their own client’s case for fear that the client will see such negativity as a lack of faith in the client or the case. When parties attend the mediation, however, they can be educated by the other side or the mediator about the weaknesses in their positions. A good mediator can begin to break down biases and resistance to agreement by asking probing questions regarding, for example, the strengths and weaknesses in an argument. Additionally, a mediator can ask the lawyers to present arguments that they think the other side might make as a means to help them see issues in the dispute from an adversary’s perspective. The mediator can suggest that the lawyers consider the views of the imaginary disagreeable adjudicator and have the lawyers provide the explanations that they think the judge might provide if their clients lost in court. Generating such explanations will enhance the likelihood that the attorney will be able to imagine the judge actually ruling against her client.110 Mediators, and opposing counsel and clients, can also help disputants get beyond judgments based on hindsight; reliance on availability, affect, and representativeness; or undue focus on sunk costs (see chapters 4 and 5). Mediators can, for example, suggest that each side look at data that may reveal judgment errors. Simply talking through sunk costs using lay terms may help a person realize that it does not make sense to throw additional good money down the drain just because some losses have already been suffered. Mediator: Mr. Jones, I know that you are very upset that the trucks your company bought from Jalopies Inc. are not performing as well as you had hoped. I understand that you believe that Jalopies Inc. committed fraud that caused at least $100,000 worth of damage to your company. At the same time, however, before you make the decision to reject their offer of $50,000 to set this matter to rest, you may want to consider what the costs will be of continuing this litigation. Specifically, you may want to consider both the financial costs of further litigation and also the emotional or morale costs to you and your company. At some point you may decide that it makes sense simply to cut your losses and accept the settlement rather than to continue to spend additional money to try to recoup that loss.

Similarly, a mediator can point out that mistakes that seem obvious after the fact may not have been obvious at the time. Mediator: Ms. Lucero, I appreciate that you are confident that Ms. Chan must have been aware that she was not doing a good job when she repaired your chimney. It did, after all, fall apart just six months after she had completed her work. Nonetheless, perhaps you can appreciate Ms. Chan’s explanation that she simply could not foresee the possibility of the ice storm that ultimately seems to have contributed to your chimney’s demise. Sometimes we find it easier to predict things when we look backward than it might have been at the time.

A more evaluative mediator may counter such judgment biases even more directly by offering her own views on the dispute. Mediator: Mrs. Juarez, you have stated that you are absolutely sure that you will recover significantly more than the $20,000 defendant has offered if you reject the settlement and take your claim to trial. However, I have to tell you that I have

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handled lots of these kinds of cases, and in my experience it is quite rare for a plaintiff with your type of claim to recover much more than the $20,000 you have been offered. Indeed, in my opinion, it is quite possible that you could lose your case altogether if the jury finds that your injuries were due to your prior skiing accident and not this recent car crash.

Although attorneys may discount the views expressed by mediators as strategically geared to enhance settlement prospects, the views of a well-respected mediator are likely to make a dent in the thinking of most attorneys and their clients. A mediator can also help break an impasse by serving as an intermediary to help the parties avoid reactive devaluation (see chapter 5). Whereas a party might devalue an offer that comes from the opposing party, the mediator can present an offer or idea as a neutral proposal. Mediator: I don’t know for sure whether Mr. Randolph will go for this, but might you be interested in a deal in which your company, in return for a complete release, paid Mr. Randolph the back pay he claims he is due but not the punitive or compensatory damages or attorney fees he has also sought?

In some instances, a client or attorney may be resisting a proposed settlement due to his frame of reference (see chapter 5). For example, the defendant party may be comparing the plaintiff’s demand of $15,000 to a finding of no liability. In order to make settlement more likely, the mediator will want to highlight a different reference point so that the defendant compares the plaintiff’s demand to the defendant’s expected loss if the case goes to trial. Few, if any, cases are so clear that the expected loss at trial would be zero. Mediator: Joe, I know that you are expecting that the jury will find for you if this case goes to trial, but I have to tell you that in my experience, there is always an element of surprise at trial. You just never know who will be on that jury, how the witnesses will present, and so on. Ms. Roth is claiming at least $150,000 in compensatory and punitive damages, not to mention your anticipated legal fees. If she has even a 10% chance of prevailing, you will be taking a significant risk. And I believe your attorney said it could easily cost another $20,000 to take this case to trial. In comparison, paying $15,000 may result in significant savings.

The mediation process can also help fulfill disputants’ desire for procedural justice. As we discussed in chapter 8, disputants desire the opportunity to voice their concerns to someone who is neutral and trustworthy and who will treat them with dignity and respect. Although this neutral would traditionally have been a judge, mediators now often fulfill this role. To the extent that the mediator and both sets of parties and attorneys treat the participants with dignity and respect and allow them to voice their concerns, the mediation process can allow disputants to feel that they have been heard. Once heard and treated with dignity and respect, the disputants may be better prepared to settle. As one experienced litigator states: “Having an opportunity to open up about their feelings and speak at length about their experiences with a neutral party can help clients achieve a sense of catharsis and closure, without the specter of a public trial.”111

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The presence of the parties can also make apologies more possible and more powerful. Consider a lawsuit in which parents sued a doctor for medical negligence.112 The mother went into labor on her physician’s day off. The physician attended to the mother when the fetal monitor strips showed signs of distress. But when her labor appeared to return to normal, he left to play golf. Thirty minutes later, the mother was again in distress, but the golfer doctor did not make it back to the hospital before the baby died. The parents were extremely upset with the doctor and blamed their child’s death on the doctor’s lack of caring. Although the physician’s lawyers resisted a meeting between the doctor and the family, the doctor pushed for such a meeting. The mediator, Eric Galton, then asked the parents (in caucus) whether they would like to meet with the doctor, and the mother stated, “Yes, I would very much like to meet with my doctor.” Galton described what happened next: The physician is escorted to the parents’ room. As the physician enters the room, he stops just outside the door. The mother is seated ten feet away. For several minutes, no words are exchanged. No one even moves. Suddenly, the mother gets up, tears begin to flow, and she holds out her arms. The physician goes over to the mother. As they embrace, the physician says, “I’m sorry. I’m so sorry.” The mother, patting the physician’s back, responds, “It’s okay, we forgive you.” The husband comes over and joins the embrace. The lawyers, standing on the opposite ends of the room, appear mystified. The physician, father and mother sit together and talk for ten minutes.113

The formidable power of apology should no longer be surprising.114 Indeed, as one experienced personal injury litigator has noted, “Often, one of the first things my clients tell me is that they want to hear an apology.”115 Similarly, parties who participate directly in mediation may find it easier to communicate about other kinds of nonmonetary relief and to deal with other emotional issues (see chapters 3 and 7). Talking directly may allow parties and their attorneys to pick up subtle emotional cues that will help them learn more about each other’s interests. Moreover, parties may find value in expressing their anger to each other. On the other hand, some direct confrontations can blow up a negotiation, and it is for this reason that some mediators prefer to keep parties separated during much of the mediation. As we discuss below, mediators need to make tough judgment calls regarding when in-person communication will be most helpful.

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The Science of Influence Reflecting high mediator interest in learning about the psychology of persuasion, the American Bar Association Section of Dispute Resolution invited psychologist Bob Cialdini to give a plenary lecture on persuasion—Using the Science of Influence to Improve the Art of Persuasion—at its annual meeting in 2002.

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Some—likely most—mediators will use their persuasive skills (see chapter 6) to convince disputants and attorneys that agreement is their best option. Using their own apparent expertise, expressing themselves simply and clearly, controlling the physical setting, managing information exchange, imposing or lifting deadlines, and using reciprocity and liking can help disputants and attorneys find ways to agreement. Many mediators use simple approaches like providing food or drink to ease the path toward settlement. Mediators may also use more sophisticated persuasive tools, such as securing agreement on broad guiding principles and then characterizing more specific options as consistent with those principles.116

Psychological Challenges Posed by Mediation Although mediation can enhance the prospects for agreement, some potential psychological dangers may lurk. Mediators in different As we have seen, to the extent that clients participate practice settings and directly in the mediation, they will be exposed to the with differing ideomediator, opposing counsel, and, often, opposing parlogical perspectives may well disagree ties. Mediators are often judged (or judge themselves) about specific goals by their success in helping disputants reach agreement. and methods of perWe have noted that mediation provides an opportunity suasion, but most mediators engage perfor the mediator to be persuasive, but this “opportunity” vasively in persuasion also has its dangers—particularly when used to push disactivities. —James H. Stark & putants and their attorneys to a result that the mediator finds desirable but that does not serve the parties’ actual Douglas N. Frenkel119 or perceived best interests.117 Although the worst mediator practices would presumably be prohibited by ethical rules, the constraints on mediators’ persuasive capabilities are not clear.118 In chapter 14, we will revisit the realistic limits of ethical regulation. Opposing counsel may similarly attempt to use their access to a client to accomplish a settlement that might not serve the client’s best interests. Counsel

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Mediator Pushes Settlement One attorney, seeking to help his clients rescind an agreement reached in mediation of a civil rights lawsuit brought by the parents of a seventeen-year-old killed by Texas police officers, described the nature of the mediation as follows: [E]verything he [the mediator] said to them was, “Your family is going to be destroyed in this case. You got zero”—and if he said it once, he must have said it 40 times—“you got zero chance of success on this and your family is just going to be destroyed”—and he really harped on that.120

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can, for example, use tools of persuasion, play to parties’ interests in avoiding losses or recouping sunk costs, There is growing evior frame choices and issues in a way favorable to their dence . . . that at least some court-connected own position. For example, according to attorney Lawmediators are engagrence M. Watson, defense attorneys can use mediation ing in very aggressive as an opportunity to confront plaintiffs with prodefense evaluations of parties’ statistics and data and thereby encourage plaintiffs to cases and settlement options (i.e., “muscle settle their cases on terms that are more favorable to the mediation”) with defense.121 the goal of winning In the typical attorney-to-attorney negotiation a a settlement, rather than supporting parclient’s own attorney can help temper opponents’ perties in their exercise of suasive efforts through the ways in which she conveys self-determination. and discusses offers with the client. But clients who par—Nancy A. Welsh122 ticipate directly in mediation may be more susceptible to opponents’ influence than they would be in traditional attorney-to-attorney negotiations and may also risk emotional exposure and confrontation. The assurances of confidentiality often afforded in mediation may also lull disputants into making disclosures that may not serve their best interests. While the extent of confidentiality will vary by jurisdiction or contract, few if any mediations provide absolute confidentiality. However, even when mediators are careful to note that confidentiality is not absolute, participants may still feel comfortable with high levels of disclosure. Research has shown that disclosure is not deterred by nuanced assurances of confidentiality (“this is confidential except . . .”).123 Finally, the immediacy of mediation can tempt attorneys and clients to make speedy decisions, enhancing the pressures for closure (see chapter 5) that many clients will feel in any event.124 Indeed, mediators and some court orders may require that a decision maker be present and able to resolve the matter right away. Mediators may well push for speedy decisions and may urge disputants to sign an agreement or at least an overview of an agreement on the spot. Escalation of commitment can work together with time pressure to cause people to make agreements that they may later regret (see chapter 6). And sometimes social norms and authority are evoked to encourage quick settlement (see chapter 6): “The judge really wants you to settle this matter today.”

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Mediation as a Benefit for Clients While we have spelled out a number of psychological risks of mediation, we do not urge that attorneys avoid mediation. Rather, we suggest that there are a variety of ways in which counsel can handle mediation in order to maximize its psychological benefit for their clients and minimize any potential harm.125 Given the importance of the mediator’s role in the mediation, an attorney should attempt to choose a mediator who will be effective and ethical in leveraging this unique role. To the extent that an attorney can identify the most likely

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impediments to agreement in a particular case, the attorney can look for a mediator whom she thinks would be effective in dealing with that particular set of problems. Thus, if the attorney believes that both sides are overly optimistic, she could search for a mediator who will be effective in imparting a dose of reality. To the extent that the attorney believes that an apology would help resolve the dispute, she should endeavor to find a mediator who could be particularly effective in facilitating an apology. Once the mediator has been selected, the attorney can use premediation communications with the mediator (if permitted) to try to begin to shape the mediator’s understanding of the issues and approach to the dispute. Using premediation caucuses to develop trust and rapport with the mediator has been associated with achieving higher-quality settlements.126 Premediation contacts may also offer a good opportunity “to begin cultivating a working relationship with [the] mediator and educating him about [the] client’s interests and what impediments may be impeding the case’s resolution.”127 If, for example, an attorney can convince an evaluative mediator that the other side’s position is unreasonable, perhaps the mediator will lean a bit harder on the opponent to moderate her settlement position. Even mediators who characterize themselves as facilitative are undoubtedly subject to influence. On the other hand, taking too adversarial of an approach can lead to impasse. The attorney will also want to think carefully about the roles of the lawyer and the client in the mediation. It is tempting to limit the client’s role in the mediation so as to minimize the chances that the client will undermine the presentation of the case or be taken advantage of or harmed in some way by either the mediator or the other side. However, we have seen the many potential benefits of direct client participation in mediation. Thus, an attorney should carefully consider the characteristics of her client, the mediator, the other side, and the impediments to agreement. Often, but not always, this analysis will lead an attorney to have the client play an active role in making opening statements, presenting ideas, and listening directly to statements by opposing counsel or clients.128 In addition to focusing on mediators’, attorneys’, and clients’ roles in mediation, knowledge of psychology can help the attorney better prepare her client to take advantage of the opportunities provided by mediation. For example, to the extent that an attorney thinks it would be desirable to have her client treat the opposing client with dignity, listen to his concerns, or apologize for things that have occurred, the attorney needs to explain these potential benefits of mediation to the client and help the client think about how best to behave in the mediation. The attorney can similarly work with the client to communicate effectively and craft her message to be more persuasive (for example, using two-sided arguments). The attorney can also prepare the client for how the mediator and the opposing side will do their best to help the client see another side to the story. The attorney may want to acknowledge that while considering other viewpoints might initially be distressing, gaining such additional perspectives can actually be quite helpful. A client who is not properly

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Preparing for Mediation In order to properly prepare the client for mediation, the attorney should give detailed instructions. Attorney: Mrs. Goldstein, let me tell you a little bit more about what to expect during the mediation. As I’ve explained, the mediator will be doing her best to help us see if we can resolve this matter amicably prior to trial. As your attorney, it’s my job to represent you and protect you as best I can. If Johnson Inc. proposes a settlement that I think is good, I will recommend that you take it. But if the company proposes something that I think does not serve your best interests, I will suggest that you reject the offer. The final decision will be yours. During these discussions, the attorney for Johnson Inc. and Vice President Smith will be doing their best to help us to see the dispute through their eyes and to see the strengths of their side of the dispute. We’ll be doing them the same favor. In some ways, this may be uncomfortable. We all want to believe that we are 100% right and that the judge or jury is 100% likely to find in our favor. However, having represented many clients and attended many mediations, I have now learned, sometimes the hard way, that there are almost always at least two sides to every story. Rather than reject out of hand what opposing attorneys or clients are saying, I have found that it is important to listen carefully to their perspectives and to learn from what they are saying. In the end, if there are weaknesses to any aspects of our position, it is best that we learn about them sooner rather than later. The mediator, too, will be trying to get all sides to learn from each other and to see all sides of the arguments. So, I ask you to keep an open mind and be prepared to view the world through different eyes. At the same time, let’s agree that you and I will talk privately before agreeing or reacting to any terms that Johnson Inc. may propose. If you feel yourself getting ready to jump on an offer, I want you to ask me if we can take a break. Does all that make sense? prepared for mediation can derail what might otherwise have been a psychologically positive experience. At the same time, the attorney will also want to use her mediation preparations to protect the client from falling prey to an opponent’s or mediator’s persuasive skills, pressure, or even manipulations. For example, the attorney may want to caution a client to consult with the attorney privately before making any concessions. Preparing a client for mediation should also include alerting the client to the specific maneuvers that an opponent or even a mediator may use in mediation. An attorney may have experience with a particular opposing attorney and know that he is likely to try to scare

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the client into settling by playing to her risk aversion, or the attorney may have reason to believe that opposing counsel will try to use charm or reciprocity to try to influence the client to accept a settlement that might not be advisable. To protect her client against such risks, the attorney may warn the client of the opposing counsel’s or mediator’s typical approach and tell her that if either the attorney or the client senses the opposing attorney trying to mislead the client in any way, they should call for a caucus. Finally, both the attorney and the client should try to plan in advance and create implementation intentions (see chapter 5) for how they will handle the time pressures of mediation. As we have seen, more time can sometimes help a person process an important decision more completely: he may realize upon reflection that his instinctive reaction was not a good one. Thus, attorneys and clients may want to be prepared to insist on taking the time to review an important decision. While such insistence may not please the mediator, it may be important to ensuring a satisfactory decision.

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Summing It Up • Creatively structure negotiation proposals by considering what the client and the other side will find desirable. To determine interests, take the parties’ perspectives, ask questions, build trust and rapport, consider impediments, watch for emotional cues, glean information from reactions to multiple proposals, and consider a broad range of interests. • Make proposals effective by considering to whom they are best presented, the timing of their presentation, and how they should be conveyed. • Pay attention to the dynamics of the interaction between negotiation counterparts: build good working relationships; be aware of how phenomena such as confirmation bias, the fundamental attribution error, naïve realism, and hindsight bias color interpretations of others’ behavior; work to clearly and persuasively convey the intended information; and pay attention to and regulate emotion. • Help clients to effectively evaluate proposals by thinking systematically about the need for information, the strengths and weaknesses of their position, and the likelihood of success. • Capitalize on the unique features of mediation—the presence of the parties and a mediator—to provide opportunities to address biases and assumptions and provide a sense of procedural justice. Protect clients from being pushed into disadvantageous agreements by the mediator, opposing parties or attorneys, or the pressures of the situation.

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For Further Reading: Negotiation and Mediation Richard Birke & Craig R. Fox, Psychological Principles in Negotiating Civil Settlements, 4 Harv. Negot. L. Rev. 1 (1999). Roger Fisher & Daniel Shapiro, Beyond Reason: Using Emotions as You Negotiate (2005). Michele J. Gelfand & Jeanne M. Brett, The Handbook of Negotiation and Culture (2004). Rebecca Hollander-Blumoff, Just Negotiation, 88 Wash. U. L. Rev. 381 (2010). Russell Korobkin, Psychological Impediments to Mediation Success: Theory and Practice, 21 Ohio St. J. on Disp. Resol. 281 (2006). Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107 (1994). Deepak Malhotra & Max H. Bazerman, Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond (2007). Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000). Michael W. Morris & Dacher Keltner, How Emotions Work: The Social Functions of Emotional Expression in Negotiations, 22 Res. Organizational Behav. 1 (2000). Andrea Kupfer Schneider & Christopher Honeyman, The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator (2006). Jean R. Sternlight, Lawyers’ Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 Ohio St. J. on Disp. Resol. 269 (1999). Leigh Thompson, The Mind and Heart of the Negotiator (4th ed. 2009).

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CHAPTER VI

Ethics – Dealing with Client Complaints Ethically By Leslie A.T. Haley, Esq.

DEALING WITH CLIENT COMPLAINTS and UNDERSTANDING OUR DISCIPLINARY SYSTEM

Leslie A.T. Haley Haley Law PLC www.haleylawplc.com 804.420.1056

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AN OVERVIEW OF THE DISCIPLINARY SYSTEM OF THE VIRGINIA STATE BAR I.

AUTHORITY FOR THE ATTORNEY DISCIPLINARY PROCESS A.

Section 54.1-3909 of the Virginia Code, as amended, authorizes the Supreme Court of Virginia to promulgate rules and regulations [p]rescribing a code of ethics governing the professional conduct of attorneys and procedures for disciplining, suspending, and disbarring attorneys.

B.

To carry out this authority, the Supreme Court of Virginia has adopted the following rules and procedures: 1.

The Virginia Rules of Professional Conduct, which are found in the Rules of Court, Part Six, Section II, Vol. 11, Va. Code 1950 (2004 Repl. Vol.). The rules are also published in the Professional Guidelines issued by the Virginia State Bar (“VSB”) and are available on the bar’s web site at www.vsb.org. The Virginia Rules of Professional Conduct were derived from the Virginia Code of Professional Responsibility. The Rules of Professional Conduct apply to misconduct arising after December 31, 1999; the Code of Professional Responsibility applies to misconduct arising before January 1, 2000. The Virginia Rules of Professional Conduct are divided into two parts:

2.

a.

Rules - the minimum standards of professional conduct expected of lawyers in their relationships with the public, other members of the bar and the judiciary.

b.

Comments - which provide guidance about how a lawyer can practice law in accordance with the rules.

The procedure for disciplining, suspending, and disbarring attorneys is found in the Rules of Court, Part Six, IV, & 13 [Paragraph 13]; and 3. The procedure for the issuance of legal ethics opinions is found in the Rules of Court, Part Six, IV, & 10.

II.

ADVISORY OPINIONS A.

Legal Ethics Opinions

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Any VSB member may request an opinion concerning actual or contemplated conduct. The request must be presented as a hypothetical, in writing on a form issued by the Standing Committee on Legal Ethics, accompanied by a statement that the attorney has conducted a preliminary investigation to determine whether applicable rules, comments, case law, statutes or prior opinions exist.

B.

1.

If a request addressed to the committee presents a previously resolved issue, the requesting attorney will receive a response citing the applicable authority. The committee may in its discretion decline to render an opinion regarding any matter that is currently the subject of any disciplinary proceeding or litigation.

2.

Legal ethics opinions set forth the operative facts, the question presented, the applicable rules and comments, relevant prior opinions and case law, as well as the committee’s advisory opinion on the facts presented and the rationale for the opinion. Opinions are issued only after the committee reaches a consensus; no dissenting opinions are issued. The requesting member may appeal the committee’s conclusion to the VSB Council.

3.

At the committee’s discretion, opinions may be published as informal advisory opinions or transmitted to Council for approval, modification or disapproval as a formal advisory opinion. Prior to Council’s consideration of an opinion, the VSB will issue a press release inviting public comment.

4.

If Council approves an opinion, the VSB may petition the Supreme Court of Virginia for review of the opinion. Prior to the Court’s consideration of the opinion, the VSB will issue a press release inviting public comment.

5.

Opinions approved by the Standing Committee on Legal Ethics or Council are advisory only and have no legal effect; they are not binding on any judicial or administrative tribunal. Opinions approved by the Supreme Court of Virginia have the same weight as a decision of the Court. Summaries of all opinions are also published bimonthly in the Virginia Lawyer Register and periodically in the Virginia Lawyers Weekly. All LEOs can be found on the Virginia State Bar Web site at www.vsb.org.

Ethics Hotline 1.

Telephone assistance is available to VSB members in brainstorming questions related to lawyers’ ethical dilemmas. On average, the bar receives more than forty such calls per day.

2.

All inquiries are treated confidentially.

3.

You can contact Ethics Counsel at (804) 775-0564 for ethics and UPL advice or at [email protected].

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III.

COMPLAINTS ABOUT LAWYERS A.

Bar complaints are intended to address ethical misconduct by attorneys. What is ethical misconduct? Ethical misconduct is any activity by an attorney which violates a provision of the applicable disciplinary rules.

B.

What does not constitute ethical misconduct by an attorney? Fee disputes, dissatisfaction with the quality of a lawyer’s advice or strategy, rude behavior, complaints about judges and civil disputes, unless it appears that a lawyer has improperly handled client funds.

C.

What is a bar complaint? A complaint is any written communication to the bar that alleges a violation of the Virginia Code of Professional Responsibility or the Virginia Rules of Professional Conduct or from which such an allegation may reasonably be inferred. A written complaint by a client is not required to initiate a complaint. Delk v. Virginia State Bar, 233 Va. 187, 355 S.E.2d 558 (1987). Members of the public can call the bar 24 hours a day at (804) 775-0570, and hear a detailed recorded message about the complaint process, and leave a message if they need further information or to request a complaint form and a pamphlet explaining the disciplinary process. Typically, bar complaints are made by clients, other attorneys or members of the judiciary. The VSB can only address bar complaints where the subject of the complaint is a Virginia attorney or an attorney licensed in another jurisdiction who appeared pro hac vice in a Virginia case.

IV.

THE INTAKE PROCESS (Para 13-10) A.

Intake Counsel reviews every one of the thousands of inquiries that the bar receives each year to decide if the allegations presented, if proved, would constitute a disciplinary rule violation. Complaints dismissed by Intake Counsel do not become a part of an attorney’s disciplinary record. Approximately half the complaints the bar receives each year are dismissed by Intake. Dismissed complaints are destroyed one year after they are dismissed.

B.

Intake Counsel may attempt to resolve an inquiry outside the disciplinary process through proactive procedures. The proactive approach involves contacting the attorney who is the subject of an inquiry and giving the attorney an opportunity to satisfy the complainant’s concerns. If the inquiry can be resolved at the Intake level, a complaint is never opened, and the inquiry is not noted on the attorney’s permanent disciplinary record. Over seven hundred inquiries were disposed of through Intake’s proactive efforts in fiscal year 2012.

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V.

THE PRELIMINARY INVESTIGATION A.

Once a disciplinary file is opened as a complaint, the matter is referred to a bar counsel assigned to the geographic area from which the complaint emanated. Bar counsel conducts a preliminary investigation to determine if the complaint should be referred to the district committee. This second level of screening and review includes providing the respondent the opportunity to answer the complaint; an answer may afford bar counsel the only clear explanation of the gravamen of the complaint before bar counsel decides whether the complaint should be investigated.

B.

Disposition of the Complaint Within sixty days of receipt of the complaint by the bar, bar counsel is tasked with deciding the disposition of the complaint in one of the following ways: 1.

2.

Dismiss the complaint if any of the following apply: a.

as a matter of law, the conduct questioned or alleged does not constitute misconduct;

b.

the evidence available shows that the respondent did not engage in the conduct questioned or alleged;

c.

there is no credible evidence to support any allegation of misconduct by the respondent;

d.

the evidence available could not reasonably be expected to support any allegation of misconduct under a clear and convincing evidentiary standard.

There are situations in which the complaint cannot be dismissed under one of the above bases, but from experience and the nature of the complaint bar counsel believes that the matter could be dismissed for one of the following reasons by a subcommittee of the applicable district committee, and therefore, a recommendation of dismissal will be made on one of the following grounds: a.

the alleged or questioned misconduct is clearly not of sufficient magnitude to warrant disciplinary action, and the respondent has taken reasonable precautions against a recurrence of same; or

b.

the alleged misconduct is protected by superseding law; or

c.

there exist exceptional circumstances militating against further proceedings.

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VI.

3.

If a complaint cannot be dismissed by one of the above methods, it will be referred to the appropriate district committee for a detailed investigation. A little less than half the complaints assigned to bar counsel are referred for further investigation following completion of the preliminary investigation.

4.

In the course of a bar investigation, bar counsel may issue whatever summonses or subpoena he or she reasonably deems necessary for effective conduct of the preliminary investigation. A circuit court may issue a rule to show cause for failure to challenge or respond to subpoena. The Disciplinary Board may also enforce summons or subpoena.

PRELIMINARY PROCEEDINGS AT THE DISTRICT COMMITTEE LEVEL A.

There are ten district committees representing specific geographical regions of the Commonwealth. Each committee consists of at least seven lawyers and three non-lawyers, nominated by VSB Council representatives from their respective regions and elected by Council at the bar’s annual meeting each June. District committee members serve three year terms and can be reappointed once.

B.

If a complaint has not been dismissed by the bar staff or referred to a subcommittee for dismissal following the preliminary investigation, the complaint will be referred to the district committee for further investigation. VSB staff investigators investigate most complaints.

C.

Subcommittee Action (Para.13-15) A subcommittee consists of three district committee members: a lay person, and two lawyer members. A subcommittee can conduct its business in person or through any means of communication by which all three members participating may simultaneously hear each other during the meeting. Subcommittees consider the reports and recommendations of dismissal submitted by bar counsel in order to make a disposition of each of the complaints presented, in one of the following ways: 1.

Dismissal a.

As a matter of law when the conduct questioned or alleged does not constitute misconduct.

b.

When the evidence available shows that the respondent did not engage in the misconduct questioned or alleged.

c.

When there is no credible evidence to support any allegation of

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misconduct by the respondent.

2.

d.

The evidence available could not reasonably be expected to support any allegation of misconduct under a clear and convincing evidentiary standard.

e.

The alleged misconduct is protected by superseding law.

Dismissals Which Create a Disciplinary Record a. Dismissal De Minimis in which there is a finding that the respondent engaged in misconduct that is clearly not of sufficient magnitude to warrant disciplinary action and the respondent has taken reasonable precautions against a recurrence of the same. b. Dismissal for exceptional circumstances in which there is a finding that the respondent engaged in misconduct but there exist exceptional circumstances mitigating against further proceedings.

3.

4.

Agreed Dispositions a.

Agreement between the respondent and bar counsel as to the facts, proposed resolution, and the disciplinary rules violated.

b.

Unanimous agreement is required by the subcommittee. If the subcommittee approves such an agreement, a document entitled Subcommittee Determination will issue that records the disposition of the complaint. Any subcommittee member can reject a proposed agreed disposition and cause the matter to be set for a hearing before the full district committee.

Certification to the Disciplinary Board A direct certification is effected when there is a reasonable belief that the respondent has engaged in misconduct which, if proved, would justify a suspension or revocation of the respondent’s license to practice law. Such a direct certification obviates the necessity of conducting a district committee hearing.

5.

Decision to Set for Public Hearing Before the District Committee All district committee hearings are open to the public. A respondent has 21 days after the hearing notice is served to attempt to reach an agreed disposition providing for private discipline. If that time passes and no

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agreement is reached, the date, time and place of the hearing will be posted on the bar’s public hearing docket. VII.

DISTRICT COMMITTEE HEARINGS (Para 13-16) A.

B.

C.

Once a subcommittee has decided that a hearing should be held before a district committee, Bar Counsel will serve upon the respondent a charge of misconduct at least 42 days prior to the hearing date, along with a copy of the investigative report considered by the subcommittee and any exculpatory materials in the possession of Bar Counsel. Within 21 days of service, the Respondent must: 1.

File an answer to the charge of misconduct; or

2.

File an answer to the charge of misconduct, and a demand that proceedings before the district committee be terminated and that further proceedings be conducted before a three-judge circuit court, and simultaneously provide available dates for a hearing to be scheduled not less than 30 nor more than 120 days from the demand.

3.

If an answer, or an answer and demand with available dates, is not filed timely, the complaint will be heard by the district committee.

Hearings before district committees have many of the trappings of a traditional civil trial, including issuance of process, opening statements by the parties, and presentation of witnesses and documentary evidence. 1.

Stipulations are encouraged.

2.

The committee chair rules on objections, subject to being overruled by the panel.

3.

The burden of proof is upon the bar to show by Aclear and convincing evidence that the respondent has engaged in misconduct. Seventh District Committee v. Gunter, 212 Va. 278, 183 S.E.2d 713 (1971)

There are some differences between civil litigation and disciplinary proceedings. 1.

A disciplinary proceeding is a civil proceeding, sui generis, in the nature of an inquest into the conduct of the attorney. Maddy v. District Committee, 205 Va 652, 658, 139 S.E.2d 56, 58 (1964).

2.

Since a disciplinary proceeding is in the nature of an inquest, it is conducted much like an administrative proceeding. The rules of evidence are not applied strictly, but totally extraneous or irrelevant evidence should be excluded from the record. Evidentiary rulings are made favoring receipt into evidence of all reasonably probative evidence to satisfy the

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ends of justice. The weight given such evidence received shall be commensurate with its evidentiary foundation and likely reliability.

D.

2.

While a respondent has no procedural due process right to discovery in a disciplinary proceeding, Gunter v. Virginia State Bar, 241 Va. 186, 399 S.E.2d 820 (1991), a respondent is provided with all the investigative materials reviewed by the subcommittee that referred the respondent’s case for hearing.

3.

Hearings are bifurcated. The committee will first determine if the bar has proved misconduct; if so, the committee will then hear evidence in mitigation or aggravation before determining the appropriate sanction.

Other Procedural Matters 1.

The initial pleading or charging document is a notice pleading, not a fact pleading. Norfolk & Portsmouth Bar Ass’n v. Drewry, 161 Va. 833, 172 S.E.2d 282 (1933)

2.

Summons - A district committee chair may quash any summons or subpoena issued on behalf of the committee for good cause. The chair may also refuse to issue summons or subpoena requested by the respondent.

3.

Who may attend a hearing? On January 1, 2002, district committee hearings were opened to the public.

4.

Only the district committee members can participate in committee deliberations that occur in the disposition phase of a hearing. If a committee member investigated the complaint or presented the evidence to the committee during the hearing, that committee member cannot participate in the committee’s deliberations. If the committee concludes that the respondent has engaged in misconduct, the committee will hear evidence of aggravation and mitigation concerning a sanction and, if the respondent has a disciplinary record, the nature of that record.

E.

Possible Dispositions of Cases Heard by District Committees 1.

Following the hearing, a district committee can do any of the following: a.

Dismiss the complaint because (i)

the alleged misconduct does not violate the Code of Professional Responsibility or the Virginia Rules of

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Professional Conduct;

F.

(ii)

the evidence shows that the respondent did not engage in the alleged misconduct;

(iii)

the allegation of misconduct was not supported by credible evidence;

(iv)

the bar did not meet its burden of proving the alleged misconduct by clear and convincing evidence;

(v)

the respondent engaged in misconduct that is clearly not of sufficient magnitude to warrant disciplinary action and the respondent has taken reasonable precautions against a recurrence;

(vi)

the alleged misconduct is protected by superseding law; or

(vii)

exceptional circumstances exist which justify dismissal.

b.

Impose an admonition with or without terms;

c.

Impose a public reprimand, with or without terms;

d.

Certify the complaint to the Disciplinary Board; or

e.

Request bar counsel to conduct further investigation of any new matter which comes to the committee’s attention during the course of the hearing.

Appeal of District Committee Determination (Para 13-17) A respondent can appeal a district committee determination to the Disciplinary Board or make a written demand that further proceedings be conducted in a circuit court pursuant to Va. Code § 54.1-3935. The deadline for noting an appeal is ten days after notice is mailed of the district committee determination. If the Clerk of the Disciplinary System receives a timely notice of appeal from an admonition, with or without terms or a public reprimand, with or without terms, the sanction is stayed pending the outcome of the appeal. The appeal is on the record. A respondent cannot appeal any sanction to which the respondent has consented via an agreed disposition.

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VIII. DISCIPLINARY BOARD PROCEEDINGS (Para 13-18) A.

The Disciplinary Board is composed of twenty individuals including sixteen attorneys and four lay persons. It generally holds its meetings in Richmond. A quorum of five board members is required for a hearing and must include one lay member.

B.

Upon certification of a matter, the Clerk of the Disciplinary System will serve upon the respondent a notice of the hearing date before the Disciplinary Board and the certification from the district committee. A respondent has twenty-one days from service of the certification to:

C.

D.

1.

File an answer, or

2.

File an answer and a demand that proceedings before the Disciplinary Board be terminated and further proceedings be conducted before a threejudge circuit court, and simultaneously provide available dates for a hearing to be scheduled not less than 30 nor more than 120 days from the demand.

3.

If an answer, or an answer and demand with available dates is not filed timely, the complaint will be heard by the Disciplinary Board.

Disciplinary Board Hearings 1.

Board hearings are similar to district committee proceedings, albeit generally more formal in nature.

2.

Summonses and subpoena duces tecum are issued upon the request of Bar Counsel, the respondent, or sua sponte, by the Clerk of the Disciplinary System and the board.

3.

Members of the board panel may ask questions of the witnesses.

Possible Dispositions of Disciplinary Board Cases 1.

Dismissal

2.

Admonition, with or without terms

3.

Public reprimand, with or without terms

4.

Suspension of license, up to five years

5.

Revocation of license.

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E.

Other Types of Disciplinary Board Cases In addition to allegations of attorney misconduct, the Disciplinary Board also hears cases regarding impairment; criminal convictions of a specific nature, reciprocal discipline (disbarment or suspension in another jurisdiction) and reinstatement.

F.

IX.

Appeal of a Disciplinary Board Decision 1.

The respondent has an appeal as a matter of right to the Virginia Supreme Court from an order of admonition, public reprimand, suspension, or disbarment imposed by the Disciplinary Board.

2.

A notice of appeal and assignments of error must be filed with the Clerk of the Disciplinary System within thirty days after the memorandum order of the Disciplinary Board is mailed to the respondent or his counsel.

3.

A stay is automatically imposed on a board order of admonition or public reprimand during the pendency of the appeal. A board order of suspension may be stayed by the Virginia Supreme Court during an appeal upon appropriate petition. However, there is no provision for a stay of a board order of disbarment.

ELECTION OF A THREE-JUDGE PANEL (Para 13-17 D) A.

A respondent may elect for a three-judge circuit court panel to hear either a district committee or Disciplinary Board matter by making the required filing. See pp. 8 and 12 supra. A respondent may also elect to have a three-judge circuit court panel hear a show-cause matter where the allegation is that the respondent failed to comply with terms or a Disciplinary Board order.

B.

Virginia Code § 54.1-3935.B., which is titled “Procedure for revocation of License,” provides: “In proceedings under this section, the court shall adopt the Rules and Procedures described in Part Six, Section IV, Paragraph 13 of the Rules of Court” (emphasis added). The legislature changed “may” to “shall” in 1998.

C.

Virginia Code § 54.1-3915, which is titled “Restrictions as to rules and regulations,” provides: Notwithstanding the foregoing provisions of this article, the Supreme Court shall not promulgate rules or regulations prescribing a code of ethics governing the professional conduct of attorneys which are inconsistent with any statute; nor shall it promulgate any rule or regulation or

VI - A - 12

method of procedure which eliminates the jurisdiction of the courts to deal with the discipline of attorneys. In no case shall an attorney who demands to be tried by a court of competent jurisdiction for the violation of any rule or regulation adopted under this article be tried in any other manner.

X.

D.

A three-judge panel is convened in the circuit where the respondent resides or resided, has or had a principal office when the case is commenced or where any misconduct complained of occurred, but no judge from that circuit can serve on the panel, which is usually composed of one active and two retired judges appointed by the Supreme Court of Virginia.

E.

Three-judge panels have all the powers of the Disciplinary Board, and three-judge panel determinations can be appealed by the respondent to the Supreme Court of Virginia.

MISCELLANEOUS PROVISIONS OF INTEREST A.

Request by Complainant to Withdraw Complaint The fact that a complainant wishes to withdraw his/her complaint will not be the sole basis upon which to dismiss the matter. The investigation and prosecution of the complaint will proceed to its appropriate conclusion despite the request to withdraw the complaint by the complainant.

B.

Existence of Pending Criminal/Civil Litigation The pendency of civil or criminal litigation similar to the charges of misconduct will not result in the deferment of the district committee’s proceedings, unless in the discretion of the district committee, unusual circumstances exist.

C.

Costs Costs are assessed upon the respondent in every case in which there has been a final determination of misconduct by a subcommittee, district committee, circuit court, the Disciplinary Board, or the Virginia Supreme Court. The costs are assessed by the Clerk of the Disciplinary System and include reasonable travel and out-of-pocket expenses for witnesses, court reporter fees, copy costs and an administrative charge as determined by the VSB Council. Costs unpaid by a specified date will result in the suspension of the respondent’s license to practice law by the Disciplinary Board until payment is made.

VI - A - 13

D.

Service Service is effective in the disciplinary system when the document is mailed by certified mail return receipt requested to the respondent at his or her last address of record as provided to VSB by the respondent. Every member of the VSB must submit to the bar his or her address of record. If that address is not a physical address where process can be served, the member must also furnish the bar with an alternate address where process can be served. Rules of Court, Part Six, Section IV, Paragraph 3.

E.

The bar has no right to appeal any disciplinary determination unless the respondent appeals, in which case the bar can cross-appeal.

F.

Signature of Respondent Required A respondent is required to sign his or her written response to any complaint, charge of misconduct or certification although the respondent may be represented by counsel. Paragraph 13-13B.

AVOIDING BAR COMPLAINTS The Virginia State Bar receives thousands of ethics complaints each year. Fortunately, few involve serious misconduct or severe sanctions. However, all of them are very disruptive to the lawyers involved. Considerable expense and valuable time defending a bar complaint could often have been avoided had the lawyer adopted practices and procedures to reduce the risk. I.

WHAT CAN YOU DO TO AVOID COMPLAINTS?

There is no guarantee that you will avoid a bar complaint in course of your career, no matter how diligent and ethical your practices may be. Here are some practical suggestions: A.

Maintain an open line of communication with your clients. 1.

Establish a clear understanding with the prospective client at the initial interview regarding (a) the scope of the representation and (b) the fees and costs associated with the engagement.

2.

Use non- and disengagement letters.

3.

Consult with clients on all significant matters in the case. Remember that the experience may be "old hat" to you, but will probably be unique to your client. When in doubt as to what may be significant, communicate.

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B.

4.

Clients do not like to feel that they are being ignored. If you cannot return calls, delegate the calls to your assistant.

5.

Inform clients of realistic and achievable goals, time expectations and your authority as an attorney; recognize your limitations and share those with your client. Do not make promises you cannot keep.

Clearly explain your fees, costs, and billing practices at the inception of the engagement. 1.

Use written and detailed fee agreements. Although written fee agreements are not required in Virginia, there is considerable wisdom in following the suggestions in (the former) Ethical Consideration 2-21, which are broader than the requirements of Rule 1.5(b): As soon as feasible after a lawyer has been employed, it is desirable that he or she reach a clear understanding with his or her client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of parties regarding the fee, particularly when it is contingent.

2.

Maintain proper trust account records, expense records, and properly account to your client for fees, costs, and client funds placed in the trust account. Remember that the client is entitled to an adequate explanation of the fees and costs incurred during the engagement. Rule 1.5(b).

3.

Maintain detailed and adequate time records, and bill clients regularly with itemized bills.

4.

Do not withhold services simply because your client has an outstanding bill. There are ways in which one may ethically withdraw from representation, but one surely asks that a complaint be filed if the attorney simply refrains from working until the bill is paid. Rule 1.16; LEOs 974, 996, 1325.

5.

If there are questions regarding your bill, be available to discuss them with your client.

6.

If the professional engagement is terminated, do not withhold the client’s file as security for unpaid fees. The file should be delivered to the client with reasonable promptness. LEO 1690; Rule 1.16 (e).

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C.

Accept employment only in those areas of law in which you are competent. 1.

Rule 1.1 states that: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

D.

2.

Either decline employment in which you are not competent or engage a competent practitioner to assist you. LEO 1406. Remember that the client must know of, and approve, the employment of additional counsel. Rule 1.5 (e) (1).

3.

Do not advance unwarranted defenses or claims or take positions that are frivolous. Rule 3.1.

4.

Do not stonewall pretrial discovery, file needless objections to lawful discovery or propound discovery to harass or intimidate. Rule 3.4 (e).

Do not compromise your independent professional judgment. 1.

Problems frequently arise when an attorney agrees to represent several clients in a matter when they have differing, or potentially differing, interests. Examples that come to mind are (a) partnership formations; (b) driver/passenger automobile accidents; (c) uncontested divorces with stipulated settlement agreements; and (d) multiple criminal defendants. Rule 1.7 allows an attorney to represent multiple clients following full disclosure of any conflict by the attorney and informed consent by the client, and provided that the lawyer reasonably believes that he can adequately represent the interest of each. Nevertheless, such representation is fraught with potential peril.

2.

Use a system to screen prospective clients for actual and potential conflicts of interest. A conflict gone bad will mean that not only must the lawyer withdraw from the latter representation, but he or she generally must withdraw from the existing representation as well.

3.

If you do represent clients whose interest’s conflict, be sure to commit the disclosure of conflict to writing and have the client sign it.

4.

Avoid business and personal financial dealings with your client. While the ethics opinions have sometimes held that such dealings are proper under limited circumstances, as general rule, they are fraught with peril for the attorney. Do not do business with your criminal clientsBit is an

VI - A - 16

invitation to have your office searched, your files subpoenaed, summoned before a grand jury or even indicted. It’s not worth it. E.

F.

Conclude the representation properly and effectively. 1.

At the conclusion of the engagement, return all client property and any unearned fees or unused costs. Rule 1.16. It is also wise at this point to send a disengagement letter. LEOs 646, 1246.

2.

If you have been discharged during the course of the representation, consult Rule 1.16. You must take all necessary measures to avoid foreseeable harm to the client. This admonition holds true if you have withdrawn as counsel. LEO 1246.

3.

Non-engagement, closing or disengagement letters: a.

Consider, in contentious cases, sending a letter by certified mail, return receipt requested, confirming your withdrawal from a matter.

b.

The letter should state in no uncertain terms that the law firm is not taking the case or is not going to continue representing the client in that case.

c.

The client should be advised of critical time limits that must be followed to keep a claim viable.

d.

The client should be advised to obtain legal counsel as soon as possible to pursue his or her legal rights.

e.

Avoid stating the exact legal reason for rejection of the case.

f.

Avoid stating why, in your opinion, the case lacks merit.

g.

Avoid stating why, in your opinion, certain defendants are not liable.

h.

If you have become attorney of record in a matter, then a substitution of counsel with client consent or a court order releasing you from the case is required.

Pick your battles wisely: be careful about suing clients for unpaid fees. It has been estimated that at least 40% of all suits for fees filed by attorneys have resulted in bar complaints and/or malpractice counterclaims.

VI - A - 17

G.

Maintain the confidentiality of your clients’ (current and former) information. No one considers it professional to talk out of school. Train your staff on the importance of not discussing client matters outside of the office.

H.

Avoid problem clients even the ones that pay your fees. There are clients that will sue a lawyer or file a complaint at the drop of the hat. Learn to recognize them and have the courage to turn them away. Beware of the client that has been through 2 or 3 lawyers before coming to you.

I.

Keep yourself mentally, morally, physically and spiritually fit. Your physical, mental and spiritual health are critical to avoiding mistakes and exercising good judgment. Eat well and get plenty of rest. Avoid excessive drinking of alcohol but drink plenty of water. Have a regular routine for exercising and relaxation. Stress kills and impairs judgment. Find time for family and friends. Do pro bono work and help someone who needs it.

J.

Don’t be afraid to ask before you act. Lawyers under pressure forget or neglect to ask for advice before they act. Consult with your peers, call the Ethics Hotline if you have ethics, practice or risk prevention issues that need resolution.

II.

MYTHS AND MISCONCEPTIONS ABOUT BAR COMPLAINTS

A.

Myth: There is a statute of limitations for filing a bar complaint. Reality: No limit exists. A complainant may file a complaint regarding conduct far in the past.

B.

Myth: Only clients can file complaints. Reality: Anyone can file a complaint regarding any attorney's conduct.

C.

Myth: If a complainant withdraws a complaint, the matter is closed. Reality: Once a complainant files a complaint, the Bar investigates and pursues the allegations based on the merit of each claim, not on the preferences of the complainant.

D.

Myth: If a complainant is a criminal, his complaint is unreliable and will surely be dismissed. Reality: The Bar evaluates the merits of each allegation regardless of the identity of the complainant.

E.

Myth: The Bar can only investigate the specific allegations of the complainant. Reality: The Bar investigates all issues present in the information obtained.

VI - A - 18

F.

Myth: If there is no showing of harm, the complaint will be dismissed. Reality: The complaint system determines misconduct, not damages.

III.

TWELVE TROUBLE AREAS

A.

Failure to Communicate with Your Client 1.

Common Scenario: Christopher Client files complaint that his lawyer never returned his thirty-seven phone calls. Larry Lawyer's response: AI didn't have any news about his case, so I didn't bother to call him back.@ a.

2.

B.

Larry's trouble is he failed to look at this from the client's perspective. The client is not a mind reader; he does not know there is no news in the case. The client is likely to assume neglect or avoidance as the cause of the failure to return the calls. This sort of non-responsiveness is a sure way to draw out bar complaints from your clients.

Common Scenario: Carol Client calls Linda Lawyer curious as to what's going on with her case as Linda has not communicated with Carol in months. Carol is in prison anxiously, hopefully awaiting news of her latest appeal. Carol finally responds that the appeal was denied four months ago. Linda files a complaint for the delay in sharing the news. a.

Carol like Larry above is missing a great opportunity to avoid bar complaints in her practice; better communication with clients would prevent this sort of complaint.

b.

Carol has also probably run afoul of the directive in Rule 1.4 that Aa lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Denial of a criminal appeal is surely the sort of status change that 1.4 expects an attorney to share with her client.

General Neglect and Procrastination 1.

Common Scenario: Busy Lawyer lives on the adrenaline rush of deadlines and completing things in the eleventh hour. Less interesting to Busy Lawyer are matters with no deadlines. Anxious client wants to get married to his new girlfriend. Anxious asks Busy to file divorce papers to end his marriage to his old girlfriend. Busy is keeping busy with deadlinedriven tasks. Six months later, Anxious calls Busy for a status report on the divorce. Busy has not filed the papers. After his new girlfriend cancels the engagement, Anxious files a complaint for neglect.

VI - A - 19

C.

a.

Busy Lawyer needs to learn one of two things: that cases are worth doing promptly even if they do not have a deadline or not to take cases without deadlines.

b.

Busy Lawyer needs to review his ethical obligations, from Rule 1.3, to act with reasonable diligence and promptness in representing a client and not to intentionally fail to carry out a contract of employment entered into with a client for professional services.

Failure to Protect Your Client's Interest When the Representation Ends

1. Common Scenario: Hungry Lawyer's finished a long case for Deadbeat Client. Deadbeat picks a fight with Hungry seemingly to provide justification for refusing to pay Hungry's bill. Deadbeat now demands his file from Hungry. Hungry refuses to give Deadbeat the file until Deadbeat pays for his legal fees and for the cost of copying his file. Deadbeat files a complaint with the Bar.

D.

a.

Hungry Lawyer needs to either start requiring payment of advanced legal fees, get used to handing over the file along with the bill, or start expecting a lot of complaints.

b.

Rule 1.16(e) squarely addresses this file return issue. Rule 1.16(e) basically eliminates the old common law lien that involved lawyers holding files until all fees and expenses were paid. Rule 1.16(e) establishes that the client has the right to the contents of the file, that the lawyer may charge a copy charge for copying most but not all documents, and that the lawyer cannot make delivery of the file be contingent upon payment of the fees or the copying charge.

Money Issues 1.

Common Scenario: Lucky Litigator wins a big personal injury case. He expects his client to be very appreciative. Shocked Client receives his check from Lucky; the check is much smaller than the 2/3 Shocked had expected. Lucky deducted various expenses associated with the case. Shocked files a complaint. The Bar asks to see the fee agreement regarding the expenses. The Bar is shocked to learn there is no fee agreement. a.

Lucky needs to learn to nail down details about his fees in writing. Avoiding turning happy clients into shocked clients also avoids bar complaints.

b.

Lucky also needs to review his ethical obligations under Rule 1.5.

VI - A - 20

E.

2.

A lawyer must adequately explain his fee to a client and, for new clients, must communicate the amount, basis, or rate of the fee before or within a reasonable time after starting the case. Rule 1.5(b).

3.

A lawyer must state in writing the method by which a contingent fee is to be determined, including Athe percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. Rule 1.5(c).

Overzealous Advocacy 1.

Common Scenario: Passionate Pleader files a lawsuit on behalf of her brother, Lazy Leo, against his employer for firing Leo. Passionate knows in her very marrow that her brother's cause is righteous and that justice requires that he prevail. Her confidence in the merits of her brother's case has caused Passionate to read the pertinent legal authority with Arosecolored glasses. Much to Leo and Passionate's chagrin, Leo's suit is dismissed. Much to Passionate's chagrin, Leo's employer files a Bar complaint alleging that Passionate filed a frivolous lawsuit and that she failed to provide the court with the pertinent legal authority that established the baselessness of Leo's claims. a.

Passionate should just be glad the employer's counsel did not move for sanctions.

b.

Passionate should have been more cautious in accepting a case for a relative. Rule 1.7 limits a lawyer's ability to accept representation that may be adversely affected by a personal interest of the lawyer's.

c.

Passionate should have been mindful of her ethical duty not to bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. Rule 3.1.

d.

Passionate should also be aware that Rule 3.3 (a)(3) prohibits a lawyer from knowingly failing to disclose to the court controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel.

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F.

G.

Threatening Criminal or Disciplinary Charges Solely to Obtain Civil Advantage. 1.

Aggressive Attorney represents Angry Children. Angry Children's father was their fiduciary during their minority. Angry Children allege that their father squandered their inheritance from Aunt Generous. Aggressive makes a payment demand and adds a threat to the demand; he tells the father that if he does not pay the demanded money to Angry Children, Aggressive Attorney will pursue criminal embezzlement charges against the father. Father files a bar complaint against Aggressive Attorney.

2.

Aggressive Attorney has forgotten about the prohibition from 3.4(h) that a lawyer should not threaten criminal or disciplinary charges solely to obtain an advantage in a civil matter. If Aggressive Attorney's sole purpose in threatening criminal prosecution was to get the father to pay this money to his client, he may well have run afoul of the 3.4(h) prohibition.

Communications with Persons Represented by Counsel 1.

H.

Earnest Attorney is trying to make a settlement offer on behalf of his client, a plaintiff, to Unavailable Attorney, counsel for defendant. Plaintiff is anxious to settle, wanting to put this lawsuit behind him. Earnest has left several phone messages with Unavailable and has written Unavailable. Unavailable continues to be nonresponsive. To expedite matters, Earnest decides to write defendant directly with the settlement offer but copies Unavailable on the letter. Unavailable responds via a bar complaint, with a copy to Earnest. a.

Earnest Attorney needs to learn that there is never a good reason to communicate with your opposing counsel's client.

b.

Rule 4.2 requires that any contact with a represented party in the matter must occur only after obtaining consent from that party's lawyer. Simultaneous communication with the opposing party and his lawyer, such as a cc: on a letter or a surprise conversation with the party in the lawyer's presence, are not sufficient. That lawyer must have the opportunity to provide, or withhold, consent prior to the contact. See, LEO #1752.

Taking Action without Your Client's Knowledge or Approval 1.

Common Scenario: Efficient Attorney represents plaintiff in a personal injury case. The insurance company makes a settlement offer. Efficient Attorney eagerly accepts the offer and then tells his client that the case is settled. Client then discusses the settlement amount with his friends who

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all tell him he was robbed. He asks Efficient Attorney for a copy of his file. Client notes that the acceptance letter from Efficient to the insurance company predates Efficient's sharing of the offer with Client. Client's new attorney moves to set aside the settlement and files a bar complaint against Efficient.

I.

Efficient Attorney is now learning the inefficiencies of responding to a bar complaint, testifying as a witness in the set aside case, and defending against Former Client's fee return lawsuit.

b.

Efficient Attorney has lost sight of the scope of his authority and has disregarded his ethical duty to abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. Rule 1.2(a).

Revealing Confidential Information 1.

J.

a.

Loquacious Lawyer represents Husband in a divorce that involved testimony that was very sensitive and personal involving the demise of Husband's marriage. Subsequently, Husband and Loquacious quarrel about Loquacious' fee. The quarrel escalates into a battle with Loquacious storming into Husband's office demanding payment and taunting Husband about the sensitive issues from his divorce. Husband is humiliated in front of his employer. Husband files a bar complaint alleging the improper disclosure of confidential information. Loquacious responds that his revelation of the information was not a problem as it was all a matter of public record. a.

If Loquacious wants to avoid bar complaints, his manners and general Aclient relations will need to improve.

b.

If Loquacious wants to avoid founded bar complaints, he needs to be more tight-lipped. Rule 1.6 establishes the basic requirements to protect a client's confidential information. That the information may be a matter of public record or of common knowledge does not always justify disclosure of that information in all contexts. See, LEOs ## 1389, 1284.

Conflicts of Interest 1.

Common Scenario: Efficient Attorney has a new case. He has been approached by five co-defendants in their criminal cases. They were traveling together in a car, from which were thrown stolen goods. The defendants each have different accounts of what happened and different criminal records. Four of the defendants speak only Spanish. The fifth

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defendant speaks English and Spanish. Efficient Attorney speaks only English. To avoid waste of resources, Efficient Attorney agrees to represent all five defendants and to save the expense of an interpreter by using Bilingual Defendant as interpreter for the other four. Based on the information he receives from Bilingual Defendant, Efficient Attorney puts on a defense that leads to the conviction of the four exclusively Spanishspeaking defendants. Efficient Attorney now faces four bar complaints. a.

K.

Dealing with Unrepresented Persons 1.

L.

Efficient Attorney has failed to recognize his own conflict of interest. Rule 1.7 addresses multiple representations in a particular matter. Comment 7 to that rule notes that the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Common Scenario: Very Helpful Lawyer represents Acme Insurance Company. Bambi has been injured by a car driven by one of Acme's Insured. Bambi remains in the hospital recovering from her injuries. Very Helpful Lawyer visits Bambi and advises her that he can give her a quick but small payment as her claim is, after all, weak and she should definitely not hire a lawyer to represent her as it would only reduce her final compensation, due to the lawyer's fee. Bambi is later visited by her wise Aunt Attorney who tells her that as a matter of fact, her claim as a pedestrian struck down in the middle of a cross-walk while crossing with the light is rather strong and worth a good deal more than Very Helpful had indicated - even after calculating a lawyer's typical contingent fee. Bambi no longer views Very Helpful as very helpful. a.

Very Helpful needs to be more cautious about what he says to unrepresented people. Rule 4.3 limits the legal advice that may be given to an unrepresented person if the person's interest may be in conflict with that of the lawyer's client; that advice, if any, must only be to secure counsel.

b.

Very Helpful, in presenting his assessment of Bambi's case, may have been approaching a violation of Rule 8.4's prohibition against misrepresentations.

Payment of Your Client's Fees by a Non-Client 1.

Common Scenario: Mother hires Conscientious Criminal Lawyer to represent Dear Daughter in her criminal case. Mother knows Dear Daughter to be a good girl and that she is certainly innocent of any

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wrongdoing. Mother is generously paying the bill for Conscientious Criminal Lawyer's defense. In her meeting with her lawyer, Dear Daughter shares with him that she has a colorful background, which includes drug use and past criminal activity. Mother wants CC Lawyer to fight the charges. Dear Daughter wants to plead guilty, which CC Lawyer thinks is wise given her record. Conscientious Criminal Lawyer wants to please everyone. Should he defer to the mother? Share with Mother the true situation so she will understand his recommendation of a guilty plea? Defer to Dear Daughter and ignore the Mother's wishes? a.

Conscientious Criminal Lawyer was not so conscientious after all. He should have reviewed his ethical obligations under Rule 5.4(c), regarding the role of a third party paying the attorney fee for a client. Specifically, that rule clarifies that the third party payor (here, the mother) cannot direct the lawyer's judgment. Thus, Conscientious Criminal Lawyer should not defer to the Mother's wishes when they are not in line with the lawyer's best judgment and the client's preference regarding the plea.

b.

Conscientious Criminal Lawyer must also be cognizant of his obligation to maintain the confidentiality of information received from Dear Daughter. Rule 1.6 regarding that ethical duty contains no exception allowing disclosure to a third party payor. The only way Conscientious Criminal Lawyer may disclose Dear Daughter's past history to Mother is with the consent of Dear Daughter.

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ETHICALLY HANDLING CLIENTS AND THEIR COMPLAINTS (OR HOW TO STAY OUT OF THE DISCIPLINARY SYSTEM!) Leslie A.T. Haley, Haley Law PLC VI - B - 1

IT ALL STARTS WITH The Complaint: • Must be written • Does not have to be a client • Must allege ethical misconduct • Not fee disputes, rude behavior, dissatisfaction with advice, etc. VI - B - 2

INTAKE PROCESS • VSB receives 4200 complaints annually • Approx. 70% dismissed with no notice to Respondent • Never noted on Respondent’s record • Intake can resolve proactively VI - B - 3

REFERRED TO BAR COUNSEL Once compliant is “opened”: • Referred to bar counsel handling that district • Respondent gets copy of complaint and opportunity to answer • Complainant gets last chance to respond to Respondent’s answer VI - B - 4

DISPOSITION OF COMPLAINT w/in 60 days bar counsel can either: • Dismiss complaint • Recommend dismissal to subcommittee • Refer to district committee for investigation • Can issue subpoena or summons VI - B - 5

DISTRICT COMMITTEE • Ten committees – geographically • Each has 7 lawyers; 3 non‐lawyers • VSB staff investigators investigate

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SUBCOMMITTEE • Consists of 3 district comm. mbrs • 2 lawyers; 1 non‐lawyer • Subcommittee can: • Dismiss • Dismissal De Minimis • Agreed Dispositions • Certification to Disc Board VI - B - 7

DISTRICT COMM. HEARING • All hearings are open to the public • Respondent has 21 days to settle for private discipline (after hearing notice)

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DISTRIC COMM. HEARING • Respondent served w notice of hearing at least 42 days in advance • Copy of investigative report • Any exculpatory materials VI - B - 9

DISTRICT COMM. HEARING Respondent can: • File answer w/in 21 days • File answer and demand 3 judge court If no answer or demand filed then district committee will hear complaint

VI - B - 10

DISTRICT COMM. DISPOSITIONS District Committee possible dispositions: • • • • •

Dismissal Admonition; w or w/o terms Public reprimand; w or w/o terms Certify to Disciplinary Board Request further investigation VI - B - 11

Appeal of District Comm. Can appeal district comm. determination to: Disciplinary board or 3 judge panel Deadline: 10 days after notice is mailed of district comm. Determination If appeal noted timely then sanction is stayed. VI - B - 12

DISCIPLINARY BOARD Has 20 members (16 attys) • Quorum of 5 required for hearing • 1 must be layperson •

• Upon certification to DB notice served • Respondent has 21 days to answer • Must request 3 judge panel w/in 21 days VI - B - 13

DISCIPLINARY BOARD Possible dispositions: • • • • •

Dismissal Admonition; w or w/o terms Public Reprimand; w or w/o terms Suspension of license; up to 5 years Revocation

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APPEALS • Appeal as matter of right to SCT • Notice of appeal must be filed with Clerk w/in 30 days after memorandum of order • Stay auto imposed on admonition or public reprimand • Suspension stay requires SCT petition • NO stay for disbarment VI - B - 15

3 JUDGE PANEL ELECTION Respondent must request • 3 judge court convened in circuit where Respondent resides or has office • 3 judge court composed by SCT (usually 2 retire and 2 sitting) (from different jurisdictions) •

• Can be appealed to SCT VI - B - 16

MISC • Complainant cannot withdraw complaint • Bar has no right of appeal • Respondent needs to sign every answer • Costs are assessed every case where there is final determination of misconduct VI - B - 17

MYTHS/MISCONCEPTIONS • No SOL for filing bar complaint • Anyone can file bar complaint • If complainant is criminal then matter will be dismissed (not necessarily) • If no showing of harm then complaint dismissed ‐ NO • Bar can only investigate allegations of complaint (wrong!) VI - B - 18

MYTHS/MISCONCEPTIONS • Rule 1.6 – confidentiality • What can be disclosed to respond? • Rule 1.6(b)(2) – such information to establish a claim or defense on behalf of the lawyer in a Controversy between the lawyer and the client....or to respond to allegations in any proceeding concerning the lawyer’s representation of the client. VI - B - 19

PROBLEM AREAS • Failure to communicate • Neglect/procrastination • Failure to protect client interests when representation ends

VI - B - 20

PROBLEM AREAS • Money issues • Overzealous advocacy • Threatening criminal or disciplinary actions (to gain civil advantage)

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PROBLEM AREAS • Communications w represented persons • Acting w/o client consent • Revealing confidential information

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PROBLEM AREAS • Conflicts of interest • Dealing w unrepresented persons • Payment of fees by 3rd party

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SO WHAT CAN YOU DO? • • • • • • • • •

Avoid bar complaints Communicate with clients Explain fees and billing practices Areas of law Do not compromise indep judgment Conclude the rep properly Think before suing for fees Avoid problem clients Keep yourself mentally, physically fit VI - B - 24

RESOURCES •

Rules of Professional Conduct

• Rules of Court, Part Six, Section II, Vol. 11 (also found in the Professional Guidelines)

• Legal Ethics Opinions • Ethics Hotline – also email VI - B - 25

LESLIE A.T. HALEY HALEY LAW PLC 804.420.1056 [email protected] WWW.HALEYLAWPLC.COM Leslie A.T. Haley, Haley Law PLC VI - B - 26