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Police Blocked from Forcing Defendant to Give Phone PasscodeAn Illinois appellate court recently upheld a lower court ruling that police could not compel a defendant to surrender his passcode in order to access his cellphone. The court determined that forcing the defendant to give up his secured digital information would violate the Fifth Amendment to the U.S. Constitution, which protects people from self-incrimination. The ruling is the latest development in an ongoing debate about whether the contents of a digital device should be treated as simply data or akin to personal testimony in a criminal case.

Fifth Amendment

In People v. Spicer, the defendant is charged with unlawful possession of a controlled substance and possessing a controlled substance with the intent to deliver. During a traffic stop, police allegedly found a pill bottle containing cocaine inside the defendant’s car. A court approved a warrant to search the defendant’s cellphone for supporting evidence, but police could not open the phone because of the passcode. Police sought to compel the defendant to provide the passcode. The court denied the request because it would force the defendant to incriminate himself if there is damaging evidence in the phone’s contents. According to a common interpretation of the Fifth Amendment:

  • The amendment applies when the information is testimonial, incriminating, and compelled; and
  • Providing information such as a passcode is testimonial because it requires the defendant to use the contents of his or her mind.

Some legal scholars claim that the Fifth Amendment should naturally protect information on cellular devices because it is an extension of the user’s mind.

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Actual Physical Controls Allows DUI Charge Without DrivingDespite its name, driving is not a requirement for you to be charged with driving under the influence of alcohol or drugs. Illinois’ DUI law states that a person under the influence of an intoxicating substance cannot drive or be in “actual physical control” of a vehicle. This means that you could be charged with DUI for merely being inside your vehicle while intoxicated. It may not matter to a court that you did not intend to drive if you had the ability to drive the vehicle at a moment’s notice.

Circumstantial Evidence

Illinois law does not define what “actual physical control” is with a vehicle. Courts will judge whether a DUI defendant had actual physical control based on the details of each case. Relevant factors include whether:

  • The vehicle was running;
  • The keys were in the ignition;
  • The defendant possessed the keys;
  • The defendant was in the driver’s seat;
  • Anyone else was inside the vehicle;
  • The defendant owned the vehicle; or
  • There was any evidence that the vehicle had recently been driven.

The evidence against you grows stronger if you were sitting behind the steering wheel or the keys were in the ignition. You are less likely to have had actual physical control if the vehicle did not belong to you or someone who was not intoxicated was inside the vehicle with you.

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Hasty Mistrial Ruling Leads to Double JeopardyThe fifth amendment to the U.S. Constitution protects a defendant from being tried more than once for the same crime, which is known as double jeopardy. The prosecution can seek a second trial with a new jury if the first attempt ended in a mistrial, which most commonly occurs when a jury cannot reach a unanimous verdict. A court may also declare a mistrial if it believes that a jury has been prejudiced to the point that it cannot reach an unbiased verdict. However, a mistrial must be the court’s last resort, after considering other options to preserve the trial. An Illinois appellate court recently ruled that the state could not start a new trial against a defendant because the trial court was not justified in declaring a mistrial in the first prosecution attempt.

Case Details

In People v. Shoevlin, a woman was charged with two counts of domestic battery for allegedly attacking her husband. The two parties were separated at the time of the alleged incident and filed for divorce afterward. The defense built its case on the idea that the husband had an incentive to lie about the incident in order to gain a majority of the parental responsibility for their children. During the closing arguments, the defense said that the man was trying to ruin the woman’s life with the charge because she would likely lose her children. After the statement, the judge privately met with the counsel for both sides, saying that it was inaccurate to claim that the state would take her children away as a condition of her conviction. After deliberating for five minutes, the judge brought the jury back in the room and declared a mistrial. The judge’s reasoning was that:

  • Telling the jury to disregard the defense counsel’s statement would not prevent prejudice; and
  • Discrediting the defense counsel would mean that the defendant would appeal a potential conviction based on ineffective assistance of counsel.

Appeal

When prosecutors started a new trial, the defense motioned to dismiss the trial because it would be subjecting the defendant to double jeopardy. The trial court rejected the motion, but the appellate court reversed that decision. The court stated that it is important to limit a defendant’s prosecution to one trial whenever possible because having multiple trials:

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Keeping Your Attorney-Clients Conversations ConfidentialYour right to confidentiality is one of your fundamental protections when organizing a defense against a criminal charge. Your attorney cannot discuss any of your private conversations with someone else, even if you confess your guilt. If a defense attorney spoke to you but does not represent you, he or she cannot testify about what you said to him or her. Conversations with a therapist or your spouse are also confidential in most cases. However, there are situations in which your private conversation is not protected and could be used against you:

  1. Public Conversations: A witness can testify about your conversation with your attorney if you were speaking loudly in a public place. Conversations are confidential only if you make an effort to be discreet. You may not realize how loudly you are speaking if you are talking to your lawyer on a phone.
  2. Jailhouse Conversations: Though jail is not a public place, you must be careful when talking to your lawyer in a common area. Inmates may try to overhear you making an incriminating statement in hopes of testifying against you and gaining favor with prosecutors. Jailers may also be monitoring phone calls you make in a common area.
  3. Third Parties: Inviting someone other than your attorney to join your conversation may mean that what you said is not confidential, depending on the reason you invited the third party. You can claim that the conversation was still confidential if you needed the other person to provide insight into your case. However, a friend or family member other than your spouse could be asked to testify against you if you simply wanted him or her to be present.
  4. Future Crimes: Your attorney cannot disclose your confession to a crime you committed, but that does not apply if you express an intent to commit a crime in the future. Your attorney is allowed to contact the authorities in order to prevent you from committing a crime.
  5. Crimes Against Children: The exception to confidential conversations with a spouse or therapist is if you discuss a crime involving a child. A therapist is obligated to report crimes against children, and prosecutors could force your spouse to testify about such a crime.

Contact a Crystal Lake Criminal Defense Attorney

When you talk about your criminal case with someone other than your lawyer, you risk the prosecution trying to use that person as a witness. A McHenry County criminal defense attorney at Botto Gilbert Lancaster, PC, will protect your confidentiality during your case. To schedule a free consultation, call 815-338-3838.

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Why You Should Not Testify in Your Criminal CaseWhen accused of a crime that you did not commit, it is human nature to want to tell everyone that you are innocent and explain why. However, it is almost always a bad idea to put a criminal defendant on the witness stand during his or her trial. There is too much potential for a jury to misconstrue your testimony, ultimately hurting your case. You are better served by making the prosecution prove the charge and letting the evidence speak for you.

Perception

Certain jurors may assume that your decision to not testify is a tacit admission of guilt, even though the court will instruct them to not make that assumption. However, testifying in court could do greater damage to your image. It is difficult to convincingly explain your innocence because your behavior will influence the jury more than your words:

  • Behaving nervously seems like you are trying to hide the truth;
  • Behaving emotionally makes you appear unstable, which is particularly bad if you are accused of a violent crime; and
  • Jurors could interpret a lack of emotion as you being cold and unfeeling.

Cross-Examination

You can practice how to answer questions that your defense attorney will ask you, but the cross-examination is the most dangerous part of testifying. Prosecutors will use the opportunity to ask you a series of tough questions in order to discredit your previous testimony or get you to unintentionally incriminate yourself. Their tactic is to wear you down with persistent and carefully worded questions until you:

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