A Setback For Self-Incrimination

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, June 21, 2013

Most of you have watched it happen on television, in one of the seemingly endless procedurals – after an individual is arrested for a crime or brought in for questioning, the individual receives Miranda warnings. One of those rights from the warnings is the right to remain silent, a right that far too many criminal defendants do not exercise to their own peril.

If a defendant, after receiving Miranda warnings, voluntarily chooses to speak, any of those statements may be used against him at trial. If the defendant, in custody, makes statements before receiving his Miranda warnings, the government cannot use those statements in its case-in-chief …

Supreme Court Limits Mandatory Minimums (Sort Of)

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Thursday, June 20, 2013

One aspect of criminal law that seems to attract far less attention than it deserves is the link between the statutory definition of a crime and the statutory penalty. Because we believe no two crimes and criminals alike, we give judges discretion to sentence within a range of punishment. And states have freedom to structure their penalty ranges in a variety of ways, some very narrow, some very broad.

Over the last fifteen years, the Supreme Court has put some significant constitutional limits on how judges can impose punishment within a given range. One of the most extensive sentencing schemes is the federal Sentencing Guidelines, …

The Fourth Amendment And Your DNA – Any Limits? – Part II

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, June 7, 2013

In Part I of our discussion of Maryland v. King, we summarized the holding, its questionable reasoning and the good points of the dissent. In this post, we want to explore issues left unexplored by the majority and even the dissent, and what should be done to fix some very bad law.

The scope of the search may seem limited by reading the majority opinion, which tries to qualify its holding as only for arrests for “serious offenses.” But, as Justice Scalia notes, the Court never defines a “serious offense,” and the logic (twisted as it is) that supports collecting identification information would …

The Fourth Amendment And Your DNA – Any Limits?

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Thursday, June 6, 2013

The Supreme Court decided one of the most important and far-reaching Fourth Amendment cases in quite some time on Monday, holding by a 5-4 majority in Maryland v. King that the Fourth Amendment does not prohibit a state from taking a DNA swab of every person arrested for a “serious offense” for the purpose of confirming the identity of the arrestee. The majority held: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, …