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L’Shanah Tovah!

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Wishing our treasured readers who observe Rosh Hashanah a happy, healthy, safe and prosperous New Year!

 

 

“I Have Him Saying That On Audio!” Yes, But Is That Legal? State Recording Laws

Hands down, the best publicly available guide to electronic recording law is that provided by the Reporters Committee For Freedom Of The Press (RCFP). The guide also includes FCC rules and updates to laws already in existence.

Comprehensive yet easily absorbed and implemented, the RCFP’s Recorders Reporting Guide outlines the tape-recording laws and then options with state-by-state definitions and laws. For example, the tape-recording laws for New York:

New York

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents. N.Y. Penal Law §§ 250.00, 250.05 (McKinney 2012).

In-person conversations: The “mechanical overhearing of a conversation,” or the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present” is illegal. N.Y. Penal Law § 250.00. A state appellate court held that individuals who talk in a manner such that a non-participating third party may freely overhear the conversation may have no reasonable expectation of privacy in it. New York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1991). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication, including a cellular telephone communication, is required to record it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y. Sup. Ct. 1990). And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. N.Y. Penal Law § 250.00.

Hidden cameras: It is a felony to photograph or record “the sexual or other intimate parts” of a person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person has a reasonable expectation of privacy, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. N.Y. Penal Law § 250.45. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. N.Y. Penal Law § 250.05.

Disclosing recordings: Disclosing the contents of a sealed communication that has been opened or read in violation of the wiretap law without the consent of the communication’s sender or receiver is considered “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25.

Straightforward language for a sometimes gray area of investigative rules.

BNI Operatives: Situationally aware.

As always, stay safe.

 

Bail Reform; Easing The Financial Burden On Poor Defendants

From DAILY KOS:

New Jersey’s Bail Reform and Speed Trial Act, [put in effect earlier this year], will largely eliminate bail for minor crimes and is expected to significantly reduce the state’s jail population. Under the new law, courts will use a risk assessment tool to decide whether or not a defendant should be released pre-trial, rather than simply assigning that person cash bail.

The risk assessment tool, which was created through the Laura and John Arnold Foundation, “evaluates a defendant’s risk of failing to appear, committing another offense, and committing a violent offense,” according to the Philadelphia Inquirer.

The assessment considers age at the time of the alleged offense, whether the offense was violent, past convictions and failures to appear in court, and other pending charges. It doesn’t consider race, ethnicity, or geography, among other factors.

The Inquirer also states that if a judge rules that a defendant should be released, prosecutors that disagree will now “have to argue if they want a defendant to be held beyond an initial commitment.”

For those defendants who are held under the new system, the bill also will enact limits on length of incarceration.

Those defendants who are jailed will be released if new deadlines aren’t met: Prosecutors have 90 days to indict a defendant. A trial must then be scheduled in 180 days.

In a 2013 study of the New Jersey jail population in October 2012, inmates awaiting trial post-indictment had been held an average of 314 days, according to the state Attorney General’s Office.

The Jersey Journal reports that the new law also “requires defendants make their first court appearance within 48 hours of their arrest,” reducing the time that defendants sit in jail before even being arraigned. This particular assessment tool has been implemented before. From The Inquirer:

In Kentucky, which began using the foundation’s assessment tool in 2013, the average arrest rate for defendants released pretrial declined from 10 percent to 8.5 percent during the first six months of using the assessment, while more defendants were released, according to the foundation. […]

[Additionally,] [t]he New Jersey judiciary has tested the foundation’s assessment tool on thousands of cases to ensure it’s retrieving the right records for defendants[.]

The Journal demonstrated how the new law looked in practice in court on Monday:

One defendant … appeared in court today on the charge of aggravated assault using a pipe in Jersey City on New Year’s Day. The third degree crime calls for a sentence of three to five years in prison if convicted and under the old guidelines, a bail of $20,000 to $50,000 with a 10 percent cash option was recommended.

But Pretrial Services had assessed [the defendant] to be a low risk of failing to appear at court hearings and of committing another crime. He also has no priors. Based on the Pretrial Services recommendation, he was released on his own recognizance, ordered to appear at all hearings in his case and to immediately give notice if his contact information changes.

On the other hand, prosecutors requested that [another defendant] be held without bail on charges he attempted to murder someone with a sword in Jersey City. The charge carries a possible prison sentence of 10 to 20 years upon conviction.

The case must now go before a Superior Court judge within 72 hours where the state must show probable cause for the charges, provide extensive discovery and call witnesses that can be cross-examined.

The judge can order the defendant held without bail if it is determined that there is no condition or combination of conditions that can be imposed to insure [he] is not a threat to the public, will show up for his court hearing, and will not be a threat to any witness.

The law has been in the works since 2014 and was a joint effort by Governor Christie and state lawmakers. It is also one of the most extensive state reforms in the country, and comes after increasing criticism of use of cash bail—including a report that highlighted just how harshly the poor were punished under New Jersey’s former bail system. NPR reports:

More than half of the people being held in U.S. jails have not been convicted of a crime. In 2013, a study found that three-quarters of people in New Jersey county jails were waiting for their day in court. Forty percent could have walked out of jail, except they couldn’t afford to make bail. […]

“They sit in jail for months and sometimes years. They lose jobs, they lose housing, they can lose connections to families, they can lose their children,” says Roseanne Scotti, director of the Drug Policy Alliance of New Jersey, which helped fund that study.

“Most of these individuals are low-risk individuals who could be released pending trial,” she says. “But because we had a money-based system, and not a risk-based system, they sat there because they didn’t have money.”

According to Scotti, about 12 percent of the people who are in jail are there for less than $2,000.

While reform advocates are largely supportive of the law, it has gotten significant pushback by many on the county level, due to potential costs. From the Inquirer:

In addition to hiring more staff, counties say, they have to pay staff for more hours and make capital improvements. The law requires that risk assessments be completed within 48 hours of a defendant’s commitment to jail, meaning county facilities will have to be open on weekends, according to the New Jersey Association of Counties.

The counties also have to make space for staff from the Pre-Trial Services Unit – newly created to monitor defendants released before trial – according to the association, which has pegged the cost of the bail changes to county taxpayers at $45 million.

The counties attempted to secure an injunction in order to stop the law from going into effect, but were unsuccessful.

Unsurprisingly, bail bondsmen have also been vocal critics of the new law. From New Jersey News 12:

Bail bondsman Kirk Shaw says that bail offices are also set to lose jobs. Before the new law was in place, friends and family would post bail money and pick up their defendants from jail.

“The people have no skin in the game, they’re going to be released unaccountable at the taxpayer’s expense,” Shaw says. “Taxpayers need to know your municipalities will be paying for this, your county’s going to be paying for this and your state’s going to be paying for this.”

Shaw and others like him profit off of the poverty of those languishing in jail—not to mention their impoverished family and friends. It is not exactly shocking, then, that he completely fails to acknowledge that the entire point of the risk assessment tool is to account for the risks he mentions. What’s more, judges have the opportunity to require additional restraints for those that are released pre-trial, such as ankle monitors.

Despite objections from the bail bond industry, the new law is expected to be a net positive for most defendants. Not only will it reduce the population of pre-trial detainees, it will also reduce the disproportionate prosecutorial power and allows the judiciary, a theoretically more neutral body, to have both the initial and final say in whether or not a defendant should be held pre-trial. (The prosecutor still has a significant role, as they are able to essentially appeal the release of a defendant by a judge.) The new process will hopefully also lessen the excessive jail crowding in New Jersey. And, of course, the new approach to bail will reduce the toxic role that money plays in our criminal justice system.

While the new law isn’t perfect, leading bail reform advocates are cautiously optimistic—while recognizing that even the new system will require monitoring to ensure it is accomplishing its stated goals.

“These reforms will hopefully bring more rationality and fairness to New Jersey’s legal system, resulting in fewer people in jail cells that have been scandalously overcrowded and dangerous,” says Alec Karakatsanis, the Founder and Executive Director of Civil Rights Corps, an organization that works to challenge cash bail systems as unconstitutional by bringing cases in counties and states nationwide.

“We must be vigilant, however, because New Jersey’s culture of poverty based jailing and the assembly line “justice” system that it facilitates, are exceedingly difficult to eradicate without continuous and urgent hard work.”

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Given the unacceptably high level of people langoring in jails for lack of minor funds, it makes sense to move away from a money-based bail system to one based on statistical probabilities data.  Currently, bail determinations only work for the well-heeled.  If we state our law is intended to be just for all, let’s make it so.

BNI Operatives: Situationally aware.

As always, stay safe.

Happy Labor Day!

Wishing our readers and their families a happy and safe Labor Day holiday weekend!

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