As criminal cases get more complicated, both the state and defense counsel are more likely to rely on expert witnesses. Wade Davies explains the differences in disclosures in federal and state cases in Crime & Punishment.

The mental element of a crime is often the most important element.  Having a guilty mind is what can distinguish accidental conduct from the type of misconduct society wants to punish criminally. Two years ago this column looked at whether it is possible to commit a crime without meaning to do anything wrong.¹

Two important developments — one from the United States Supreme Court and one from the Tennessee legislature — call for a reexamination of the topic.

Epidemic: You might have noticed news reports recently of a large number of health care providers being prosecuted in Tennessee and neighboring states for drug crimes. The United States Department of Justice is acting on its belief that doctors and other health care providers are contributing to the opioid crisis.

I have a healthy skepticism when the government calls something an epidemic. But it is hard to argue with the numbers. The Centers for Disease Control and Prevention concludes that in 2017 there were more than 70,000 overdose deaths in the United States. Think about the human tragedy caused by just one overdose multiplied by 70,000. Even worse, the statistics show an almost 10 percent jump from 2016. Much of this jump is due to use of heroin and synthetic drugs like fentanyl, which are imported unlawfully.

I’ve told many clients, “If you are not sorry, don’t apologize.”

Even though acceptance of responsibility is often cited as one of the most important factors at sentencing, I’ve always thought judges hear insincere apologies so often that apologies can do more harm than good. I think it is better to be quiet than insincere.

Apparently, there is research that backs up this hunch, at least in part.  And very thoughtful social scientists have provided framework for evaluating whether an apology will be effective.

Authentication of Social Media

Social media provides a fertile source for evidence in criminal cases.  Suspects give prosecutors unbelievable gifts with incriminating, threatening and otherwise unbelievably stupid admissions posted online. On the other hand, defense counsel find impeachment gems on witnesses’ social media accounts — even the portions anyone can view.

Malik Farrad learned the hard way that posting on Facebook is a bad idea.[1] Although Mr. Farrad made significant mistakes that landed him back in prison, his mistakes can teach trial lawyers important lessons about getting social media postings into evidence (or keeping them out) through a study of the Sixth Circuit’s opinion.

Authentication of Social Media

Social media provides a fertile source for evidence in criminal cases.  Suspects give prosecutors unbelievable gifts with incriminating, threatening and otherwise unbelievably stupid admissions posted online. On the other hand, defense counsel find impeachment gems on witnesses’ social media accounts — even the portions anyone can view.

Malik Farrad learned the hard way that posting on Facebook is a bad idea.[1] Although Mr. Farrad made significant mistakes that landed him back in prison, his mistakes can teach trial lawyers important lessons about getting social media postings into evidence (or keeping them out) through a study of the Sixth Circuit’s opinion.

Is it still the law that if the prosecuting witness is not sequestered he or she has to testify first?

I usually try to write this column about something to which I think I know the answer. I’m not sure about this one.

One of the most beautiful aspects of our justice system is that we have no inquisition. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Article 1, Section 9 of the Tennessee Constitution provides that the accused “shall not be compelled to give evidence against himself.” The prosecution cannot comment on the accused’s failure to testify. The accused can’t be penalized in a criminal case for declining to testify.[1]

Is it possible to be convicted of a criminal offense without meaning to do something wrong? It is.

Crime is changing. Law enforcement has better tools and more information. Investigators solve cases now with DNA, cell phone location, and social media posts. At the same time, crime has become more sophisticated. Drug dealers and thieves have adopted technology designed to make detection impossible. As with crime throughout the ages, though, criminals are still making false assumptions about what can be discovered and are simply making old fashioned mistakes.