Reciprocal Discovery: Federal Rule 16 vs. Texas SB 91

Grits for Breakfast asked, in a comment, "Do you find reciprocal discovery a hindrance in your federal cases? If not, what’s the difference?"

Before I answer that, let me say that the federal criminal justice system should in no wise be considered a model for other jurisdictions. Federal court is a plea machine, in which all of the rules are geared toward pressuring factually innocent people to give up their Constitutional rights and plead guilty.

That said, reciprocal discovery has never been a hindrance to me in my federal cases. 

In federal court, reciprocal discovery is mandated by Federal Rule of Criminal Procedure 16(b):

(b) Defendant's Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, 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:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.

(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony.

(C) 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[.]

(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:

(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or

(B) a statement made to the defendant, or the defendant's attorney or agent, by:

(i) the defendant;

(ii) a government or defense witness; or

(iii) a prospective government or defense witness.

Contrast that with the defense discovery that would be required under Texas SB 91:


(a) As soon as practicable after receiving the initial disclosure under Section 1 from the attorney representing the state, the defendant shall disclose to the attorney representing the state and permit inspection, photocopying, and photographing of the following materials and information:

(1) any written or recorded statement by a witness, other than the defendant, that is related to the offense charged, if the defendant intends to call the witness at the trial;

(2) any record of a criminal conviction admissible for impeachment under Rule 609, Texas Rules of Evidence, of a witness, other than the defendant, the defendant intends to call at the trial, if that information is known to the defendant;

(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;

(4) the names and addresses of the witnesses called to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence, and the names of all other witnesses, other than the defendant, the defendant intends to call at the trial; and

(5) any report produced by or for an expert witness the defendant intends to call at the trial.

(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense with the court and the attorney representing the state not later than the 30th day before the date the trial begins or as soon as practicable after the date the defendant receives a disclosure under Section 1 to which the defense is responsive, whichever is later. If the defendant intends to raise an alibi defense, the notice must include the place at which the defendant claims to have been at the time of the alleged offense and the names of the witnesses the defendant intends to use to establish the alibi. Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.

(c) After the filing of the indictment or information, the court may require the defendant to submit nontestimonial evidence to the state. This subsection does not limit any law enforcement agency or prosecutor's office from seeking or obtaining nontestimonial evidence to the extent permitted by law.


(a) Neither the attorney representing the state nor the defendant is required to disclose materials or information that is:

(1) recorded proceedings of a grand jury, except as provided by Rule 615, Texas Rules of Evidence;

(2) a work product other than an offense report by law enforcement personnel, including a report, memorandum, or other internal document of the attorney representing the state, the attorney representing the defendant, or an investigator or other agent of the attorney representing the state or the attorney representing the defendant that is made in connection with the investigation, prosecution, or defense of the case; or

(3) privileged under a rule of evidence, an express statutory provision, the Texas Constitution, or the United States Constitution.

(b) This article does not authorize disclosure of the name, address, or telephone number of a victim in violation of Chapter 57.

(c) A victim impact statement is subject to disclosure before the testimony of the victim is taken only if the court determines that the statement contains exculpatory material

So. Broadly, under the federal rule we have to let the government see our trial exhibits; we have to provide the results of any test, experiment, or examination that we intend to use in trial; we have to provide summaries of the findings of experts whom we plan to use at trial. (We also have to give notice of alibi (FRCP 12.1), insanity (FRCP 12.2), and public-authority (FRCP 12.13) defenses.) Other than scientific and medical reports, we do not have to reveal reports made by our agents, or statements made to our agents. There is no specific timeline—it is left to the judgment of the trial court. If we do not comply, the strongest medicine the rule provides is exclusion of the undisclosed evidence.

Under the proposed state rule we have to provide discovery "as soon as practicable" after receiving discovery.

We must give up any witness statements, witnesses' criminal histories (which, incidentally, the State can more easily obtain than we),  any evidence we intend to introduce at trial, the names of all of the witnesses (including experts) we intend to call at trial, and experts' reports.

We have to give notice of all defenses under Chapters 8 and 9 of the Texas Penal Code, including insanity and public authority, but also mistake of fact, duress, entrapment, and justification (including necessity, defense of self, defense of others, and protection of property, among others).

We can be required by the court to "submit nontestimonial evidence to the State"—in other words, the court can order defendants' property and papers seized without the probable cause required for a warrant.

We can be held in contempt for failing to comply. Our defenses can be barred if we violate the rule…but the State's case can't be dismissed if the State violates the rule.

I have italicized the things that SB 91 would mandate that are not true in federal court.

Defense lawyers have nasty little surprises—NLSes—for good reason. Those who favor SB 91 say, "we can't trust prosecutors to open their files to us otherwise." I say that we can't trust these same prosecutors not to intimidate witnesses (see Robb Fickman's account of witness intimidation here), much less not to woodshed the cops after we've laid our case bare, changing the official story so that our defenses are no more. ("Woodshedding" is the process of vigorously preparing a witness to testify, often by pointing out the weaknesses in the witness's story in light of the other evidence in the case.)

I am not opposed to compromise—I might give up a little so that defendants in counties with insecure DAs would suffer less their elected officials' attempts to feel more manly. But I don't think I exaggerate when I say that SB 91 in its current form would eviscerate the defense function in Texas. That any defense lawyer—even one suffering closed files in the county with the worst-endowed DA in Texas—would support this abomination is stunning to me.

Texas SB 91—The Discovery Bill

Texas Senate Bill 91 would provide for formal discovery in criminal cases, both from the State to the defense and from the defense to the State.

Texas Defender Service, which litigates capital cases, has come out in favor of this excrescence. Their reasoning is that, since there are District Attorneys who require waivers of Brady and other rights before they show their cards to counsel for defendants whom they have accused, or who don’t show their cards at all, a statutory duty to provide discovery is required. In order to bring light to those benighted Bradleyian backwaters of due process, TDS is willing to compromise. The notion is appealing—had Michael Morton’s lawyers been provided with discovery, he might not have spent a quarter-century in prison—but the compromise goes much, much too far.

The six most populous counties in Texas—Harris, Dallas, Tarrant, Bexar, Travis, and El Paso—account for a little over half the felony charges filed in the state. All of these counties—and many others—have open-file policies. Defendants in all of those counties will lose a great deal with “reciprocal” discovery.

What will they—as well as defendants in the backwaters—lose? Here’s my lawyer, Troy McKinney’s take on it:

This proposed legislation would be a HUGE change in the way criminal cases are litigated in Texas. It is full of all kinds of traps, including contempt for a lawyer who does not comply. Who do we think is most often going to get held in contempt? Hint: it ain’t going to be prosecutors.

This legislation will also prevent defense lawyers from sharing discovery (“information and witness statements”) with each other in cases involving similar issues or witnesses, but will likely not so prevent prosecutors from doing so since they are all in the same office.

This legislation would not require the state to turn over anything obtained or discovered by a DA investigator.

This legislation requires notice by the defense of any statutory defense not later than 30 days before trial.

This legislation allows the state to obtain, post indictment, “non testimonial” evidence from a defendant with only a court order (and without stating any standard for that order). So much for the constitutional requirement for probable cause and a search warrant.

This legislation allows a court to disallow a defense, but has no sanction limiting the state’s ability to assert a claim and expressly prohibits dismissal for discovery violations.

This legislation does not expressly require the state to disclose evidence that may mitigate punishment.

This legislation limits exculpatory and impeachment evidence to that which is “material” to the defendant’s guilt or punishment. Thus, exculpatory and impeachment evidence that only relates to an extraneous offense or a witnesses credibility may not be covered.

This legislation requires names and addresses of experts, but only names of witnesses. It lets the state hide witnesses it wants to hide.

This legislation requires disclosure of information related to an “alibi” defense, even though there is no such defense under Texas law.

This legislation requires disclosure of the place where the D alleges to have been at the time of the alleged offense, even though there is no requirement under Texas law for the state to specify the date, time, or location of the alleged offense. In some cases, there will not be any question about the date and place of the offense. But, anyone who has handled child sexual assault cases knows that the true date, place and time not only need not be pled, but are often uncertain, and there is certainly no requirement for the state to disclose the actual date, place, and time they intend to rely on at trial. Guess those defendants now get deprived of an alibi “defense.”

If the offense is a 3g offense, the state gets to excise “any information related to the victim” of the alleged offense. I’d bet that a creative prosecutor would interpret this to include the version of the alleged victim as well as any other information “related” to the victim.

Only get two to three weeks between the last setting and a trial setting? Too bad since you have already missed some of the 30 days deadlines. The legislation only requires a court to hold a discovery conference not later than 10 days before trial.

If your disclosure is “untimely” the judge gets to tell the jury that your disclosure was untimely.

This legislation only requires the state to disclose “any plea agreement, grant of immunity, or other agreement for testimony issued by the attorney representing the state in connection with the case.” It does not require disclosure of any other benefit promised to or conferred upon any witness for the state. Since it only requires disclosure of an “agreement for testimony,” promised benefits that do not amount to a plea agreement or immunity are not covered. Finally, it is limited only to promises made by the prosecutor, not by anyone else.

This legislation is a mess. It will materially change and adversely affect the way we are required to defend our clients. We should all oppose it. It should not even be a hard call.

Bottom line: those who think that this will in some way, much less significantly, help us and our clients are, in my opinion, and being as nice as I can about it, seriously mistaken. This would be the most detrimental legislative action, as it relates to our defense of our clients, in the last 30+ years, if not the last century. It will give the state even more advantages than they already have and will result in the conviction of many more of our clients — innocent and guilty alike.

In my time practicing law, I’ve gone from being allowed to handwrite OR notes…to being allowed to type them (with a prosecutor clucking at me not to type them verbatim)…to receiving copies. 

Even Williamson and Collin Counties have shooed away the Roaches (and the Bradleys) and, I think, adopted open-file policies.


Why did Johnny Holmes and Chuck Rosenthal have an open-file policy? Why did Pat Lykos provide the defense with copies of offense reports? Why is Mike Anderson working to make discovery available to defense lawyers online? Do they do it out of the kindness of their hearts? Of course not. They do it because they know that it’s fair—part of their prosecutorial duty, to try to ensure that justice is done—and because they know that if they play hide-the-ball with their evidence the accused is less likely to plead guilty.

Even in offices with open-file policies there are outliers—prosecutors who conceal information, even exculpatory information, from the accused. SB91 would provide no more of a solution to this problem than Brady and its progeny have: a prosecutor who would violate Brady would also violate SB91.

There are still elected DAs whose feelings of inadequacy in the rest of their lives lead them to win at all costs in the courtroom. They still play hide-the-ball with people’s lives. The legislature can’t make them go to therapy; it can rewrite the rules to force them to play fair. It doesn’t have to gut the defense function to do so.

Please Don’t Hesitate, Lady

According to Law Enforcement Targets’ flacks, 

I found while speaking with officers and trainers in the law enforcement community that there is a hesitation on the part of cops when deadly force is required on subjects with atypical age, frailty or condition (one officer explaining that he enlarged photos of his own kids to use as targets so that he would not be caught off guard with such a drastically new experience while on duty). This hesitation time may be only seconds but that is not acceptable when officers are losing their lives in these same situations.…If that initial hesitation time can be cut down due to range experience, the officer and community are better served.


Here’s one of the targets he’s talking about:

Woman in Nursery Target

I guess there might be a situation in which the cop in the nursery facing the armed pregnant woman could be in the right. I can conceive of a scenario in which by taking the life of the woman and her baby might better “serve the community” than by holstering his gun and backing away. Such a scenario is highly unlikely, and hardly worth spending 99¢ to buy a target to prepare for.

Man With Shotgun in House

(Image via Infowars.)

More likely, the cop facing the pregnant woman with the gun in her house has screwed up to get himself into that situation. “No more hesitation,” say the cops, but unless you think a cop’s life worth more than that of a human being protecting her family and her property, hesitation is appropriate.

Good riddance to the cop who wants to learn not to hesitate, and especially to the badged psychopath who “enlarged photos of his own kids to use as targets.” May a hostile older man get you before you screw your children up too badly.

Cop’s Lawfare Fails

Scott Greenfield writes:

[Y]ou have no idea how often someone threatens a lawsuit.  As a lawyer, I’m in a better situation both to assess the merit of a claim, and if needed, to deal with it, than many other bloggers. Others are not so fortunate, leading to the misguided sense that it’s the fault of lawyers that non-lawyers are constantly threatening to sue.

Adding to the problem is the nature of the medium itself, spread around the country, spread around the world. Then there are the pseudonymous threats. Then there are the scrapers. Then there are the butthurt public officials, cops and prosecutors who add their threats to the mix.  It never ends.

In Harris County one butthurt cop, Jacinto City Police Sergeant Dennis Walker, sued an ordinary guy, Larry Schion for complaining to Walker’s bosses—Jacinto City Council—about him in public meetings.

Among the statements Schion has said that were not true, according to [Walker’s lawyer], included allegations that Walker stole money from a vending machine at the police station, lied about various cases and was suspended for using his patrol car for personal reasons.

I don’t know if Dennis Walker is a thief and a liar. I do know that he needs a thicker skin. Schion got himself a lawyer, Michael Fleming, and yesterday State District Judge Elaine Palmer dismissed Walker’s defamation lawsuit under Texas’s new (2011) anti-SLAPP statute, the Texas Citizens’ Participation Act.

The TCPA allows Judge Palmer to order Walker to pay Schion’s attorney’s fees and sanctions:

If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and

(2)  sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

The dismissal order shows that the issue of attorney’s fees is left open until Schion files an affidavit (presumably showing the amount of the fees) next Monday.


(2)  sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

This Guy Needs Me

Andrew Sanchez III, 60, is set to be booked in Bexar County Jail on one count of improper photography. A judge set bail at $7,500.

Police said the officer assigned to the American Cheer Power Southern National Championship at the Alamodome saw Sanchez videotaping the performers around 11:30 a.m. Sunday. The officer questioned Sanchez and determined he had no children in the contest.


Improper photography is one of three newish Texas penal statutes that violate Free Speech.

The first comment following the article illustrates why: “I don’t know what restrictions registered sex offenders are under. But it can’t be illegal for an ordinary citizen to film cheerleader practice.”

Yes, dear anonymous Chronicle commenter, it is indeed illegal for an ordinary citizen to film cheerleader practice…if a cop thinks the ordinary citizen has the intent to arouse or gratify someone’s sexual desire. Does that “if” make you feel safe? Remember, the cops questioned Sanchez (and thought they had enough suspicion to run his record) before knowing that he was a registered sex offender.

The Fourteenth Court of Appeals has upheld the “photography” aspect of the improper-photography statute (which also outlaws nonconsensual transmission or broadcast of images with prurient intent). The Court of Criminal Appeals denied discretionary review, to which Presiding Judge Sharon Keller dissented: “It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment.”

Keller ought to get another shot at convincing the court to review the statute. Sanchez’s case is in Bexar County, which is covered by the San Antonio Court of Appeals, so the opinion of the Houston-based Fourteenth Court of Appeals’ will not be binding on the trial court, and the court of appeals may be compelled, even before Sanchez pleads guilty or goes to trial, to determine whether the statute is unconstitutionally overbroad and vague.

(If you’re hired or appointed to represent Sanchez, bring me in as your Law Man.)

¡SpiderOak, Sí. Dropbox, No!

It is almost unfathomable to me that a lawyer would give up confidential client information without a fight.

Yet Sam Glover at The Lawyerist suggests that this might be an option: “If you are the sort of person who would fight such a subpoena, this would give you the option to do so.”

The context: Glover is talking about using SpiderOak for file sync instead of Dropbox.

Dropbox and SpiderOak both provide options for synchronizing data between computers and storing it in the cloud. While Dropbox has access to your data, SpiderOak has zero-knowledge encryption: data are encrypted on your end, and SpiderOak could not decrypt them even if ordered to.

What that means is that if the bad guys want to get your clients’ data from Dropbox, they can get a subpoena or a court order and serve it on Dropbox; not only can you not fight it, but you might not know about it. If the bad guys want to get your clients’ data from SpiderOak they have to go through you.

If someone comes to me with a subpoena for clients’ data, I will fight it. If I am ordered to comply, I will decide whether the principle is worth going to jail. But I hold myself to a high standard, and sometimes I forget that others’ standards are lower. Maybe it’s acceptable for non-criminal-defense lawyers to give up clients’ confidential information without a fight. So let us not be too hard on Glover.

Let us limit the discussion to criminal-defense lawyers.

For online data backup in a criminal-defense practice, Dropbox is not an option

Backing up data off-site is indispensable. Syncing data among multiple computers (home desktop, laptop, office desktop) is invaluable. Sharing data with clients is useful. To do all of this I used to use Dropbox. Once I considered the confidentiality implications, however, I realized that it was a mistake. Now I will use Dropbox to share with clients stuff that the government already has, and sometimes for sharing large non-sensitive files, but never for anything that would be damaging to the client’s case if the government got it. If the government is going to subpoena my files, I want to be the gatekeeper.

Glover, quoting Eric Cooperstein, points out that “Dropbox is more secure than anything most lawyers have used to secure their files from the Battle of Hastings until about 5 or 10 years ago.”

This is probably true—breaking into an office is less of a technical challenge to the government than subpoenaing files from DropBox. But Dropbox creates a different sort of insecurity from scrolls stored in a chest. With Dropbox, copies of the scrolls are held by a third party, and the lawyer has no idea what that third party is doing with them. Aside from the fact that sneak-and-peak warrants are harder to get than subpoenas, at one point Dropbox was claiming the right to use customers’ data. They’ve backed off on that claim, but the making of it was enough motivation for me to switch to SpiderOak.

Further, if anyone but you has access to your encryption key (the case with Dropbox) then anyone who hacks them might have access to the key as well. With Dropbox, you’ve given a third party a copy of all of your scrolls; that third party has a duplicate of the key to your chest, which he keeps in his pocket with a bunch of other people’s keys; and there are a thousand thieves actively trying to pick his pockets. If you can’t imagine a dozen things that might go wrong, you’re not trying very hard.

If you are not the sort of person who would fight a subpoena for your client’s records, I hope that you aren’t defending people. If you are, I hope that you’ll take seriously the risk that Dropbox presents.

When a single data breach could ruin many clients’ lives, “reasonable” security—the standard propounded by Cooperstein and Glover (and apparently approved by bar associations)—is not good enough. Only the extreme will do.

(P.S. if you keep client data on a laptop, go now and encrypt the hard drive so that when your laptop gets stolen you won’t have to worry much about your clients’ secrets.)

Revenge Porn and “Rape Culture” Culture

Business Insider found some folks who see revenge porn not as a free-speech issue but as “a kind of high tech rape”:

When we teach women not to walk alone in public after dark, not to wear particular kinds of clothing, not to engage in consensual acts like taking nude photos or making sex tapes, we’re saying that women can expect to be victims because they are women, and that it is more important to limit a victim’s participation in public life than it is to remedy the systemic injustices that lead to victimization in the first place. Revenge porn is merely a high tech piece of rape culture, and sadly it doesn’t say anything about our culture that we didn’t already know.

Wait, what?

When we teach women? How condescending is that?

I don’t think grownups teach grownups much. So let’s talk about those whom we have some chance of influencing: our kids.

When we teach our daughters not to take nude photos, we’re saying that women can expect to be victims because they are women, and that it is more important to limit a victim’s participation in public life than it is to remedy the systemic injustices that lead to victimization in the first place?

Making sex tapes is participation in public life?

This victimocracy is criminally insane. 

Those among us who are not insane victimocrats teach our children to live happy, productive, self-reliant lives in the world as it is, and to try to make it a better world.

When we teach our children to lock the doors at night, we are not saying that they can expect to be victims. We are teaching them, rather, to take their safety into their own hands.

Do we wish that doors did not have to be locked at night, that keys could be left in ignitions, that attackers never lurked in the dark? Absolutely. But that is not the world we inhabit.

When we teach our children to dress appropriately for their surroundings, and that they don’t get to choose what is appropriate, we are not teaching them that it is not important “to remedy the systemic injustices that lead to victimization in the first place.” We are teaching them to take responsibility for their own safety and pay attention to their surroundings.

Mitigating risks and remedying injustice are not mutually exclusive; in fact they are complementary. It’s hard to remedy systemic injustices from a hospital bed, and harder from a grave.

The victims of revenge-porn websites should not have allowed the pictures to be taken. This is not moralization, but indisuputable truth with which the victims would certainly, in hindsight, agree. The victimizers should not have shared the pictures. So what lessons can we impart to our children? Obviously, not to violate others’ trust. But also to be extremely careful where they place their own trust.

Clearly, sending naked pictures to your lover has potential benefits. But people have had great sex lives for tens of thousands of years without the benefit of iPhones. Would you teach your children that they should put a loaded gun in the hands of a lover? Why teach them that it’s an unreservedly good idea to put nude photos or sex tapes in that same lover’s hands? The world is full of betrayals; if you trust someone with your secrets, that person may some day betray that trust. Once you’re grown up (this will be later than you think) you will probably be able to count on your fingers the number of people you can trust absolutely, now and forever, and if you don’t have any fingers left over you’re a lucky person indeed. 

If we don’t teach our children to keep themselves safe, we are doing them a disservice, not preparing them for the realities of the world.

A browse of one of the sites named in the Business Insider article (the things I do for my readers!) revealed men’s photos as well as women’s posted. So what about that?

When we teach our sons not to make sex tapes, are we saying that men can expect to be victims because they are men? 

And if we are saying that women qua women can expect to be victims and men qua men can expect to be victims, aren’t we teaching everyone to expect to be victims?

When you fetishize victimhood, everything is about being a victim. 

But of course it’s nonsense. We’re not doing that. We’re fighting victimhood. We’re teaching our children, if we’re doing our job, that the world can be a dangerous place for the unwary, and that decisions made in the heat of passion can have far-reaching consequences. The world is dangerous, but it doesn’t have to be scary: with some preparation, we can mitigate the risks and probably not be victims while living full lives.

At the same time that we’re teaching our children to balance life’s risks against its rewards, we’re teaching them to be good people and to minimize the consequences of others’ decisions. We teach them on the one hand to be careful where they walk alone after dark, and on the other to protect others walking alone after dark.

Do women face more danger than men? The risks for men and the risks for women are different. Women are more likely to be chosen as victims of predatory attacks because most attackers are men and most women are smaller, with less upper-body strength—predators look for maximum reward and minimum risk. On the other hand, men are more likely to be the victims of hotblooded attacks because young men antagonize each other. This is all physiology, ethology, and endocrinology; we are going to change none of it by changing our culture.

It is true, though, that our culture is screwed up in many ways that we must address:

It is decadent and degrading.

It sexualizes our children.

It teaches us to worship consumption.

It creates irrational fear.

And it fetishizes victimhood. 

Isn’t Revenge Porn Constitutionally Protected?

Dylan Love at Business Insider (the article contains lots of bad legal advice) writes:

There is a seedy underbelly of the internet where people post nude or otherwise compromising photos of their ex-girlfriends or boyfriends for anyone to see, sometimes to get back at a lover who jilted them.

These so-called “revenge porn” sites bring up a number of questions. Why aren’t they illegal?

Why would they be?

In the Business Insider post, criminal-defense lawyer Jason Van Dyke argues that the revenge-porn sites are illegal because they don’t appear to keep the records of performers’ ages required by 18 USC 2257. I think he is probably wrong. 18 USC 2257 applies to those who “produce[] any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image” containing sexually explicit conduct, and requires them to keep records of the performers’ ages. “Producing” includes “inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct” but does not include “the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.” Assuming that the owners of the revenge-porn sites did not select or alter the images they are publishing, they are not “producers” and do not have to maintain records of the performers’ ages. Holding a revenge-porn site liable for violating Section 2257 would be like holding a bookstore or cable channel liable.

If a revenge-porn site did select or alter its images and Section 2257 did apply, it would be an indirect hypertechnical attack on sleaze, like charging Capone with tax evasion. It might get the job done, but it wouldn’t get to the root of the matter.

Marc Randazza’s two rules of porn are:

Rule #1: The subjects must be adults
Rule #2: The subjects must be consenting adults

Reasonable people might agree with Randazza: publishing porn without its participants’ consent is bad. But not all bad speech is constitutionally unprotected. What removes this particular speech from the protection of the First Amendment? The problem with revenge porn isn’t that its subjects are not adults (though they may not be) but that its subjects are not consenting adults. Assuming the sites are complying with regulations, why would the publication—speech—itself be illegal?

Van Dyke, a Texas lawyer, told Business Insider, “there are people on all sides of the political spectrum who want it to be a felony. If we can’t agree that this shouldn’t be allowed, then we have serious problems.” In Texas it’s already a felony. Texas’s improper-photography statute, Texas Penal Code Section 21.15, makes it a felony to “broadcast[], or transmit[] a visual image of another…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person.”

But that statute is, as I have argued here before, unconstitutional.

Transmitting a visual image of another person is “speech”; the statute is not limited to the transmission of obscene images (which would be constitutionally unprotected). The images are not defamatory (they are true); they are not inciteful or seditious; and they are not child pornography. Since the communications don’t fall into any of the categories of unprotected speech, the courts would have to create a new category to uphold the statute in the face of a free-speech challenge.

Reasonable people, agreeing with Randazza, might look for ways to shut down the revenge porn sites—civil lawfare, or (as in the case of the site that raised Randazza’s hackles here) criminal wire fraud and extortion charges.

The whole point of free speech is that unpopular speech is protected. Popular speech doesn’t need the protection of the First Amendment. So whenever “people on all sides of the political spectrum” want speech to be a felony, this is a warning sign; we need to take a careful look at what we’d be giving up by making it one. 

In the case of the Texas statute, it’s plain what we’ve given up: not only the right to transmit titillating images of people who would consent (but haven’t consented) to our doing so, but also the right to transmit any image without the explicit consent of its subject, if some prosecutor might think that our intent in doing so was to arouse or gratify sexual desire.

Angry Mike AndersonI hope this sexy man makes you hot!
(Image from here, by Don Hooper?)

There: I have transmitted a visual image of Harris County District Attorney Mike Anderson without his consent and with the intent to arouse your sexual desire. Do you think I have just committed a felony for which I should be prosecuted? Texas’s improper-photography statute allows my prosecution.

People do and say nasty things to each other. Ex-lovers and ex-spouses have the means and often the motivation to do and say really nasty things to each other. Revenge porn is particularly nasty. But the United States Supreme Court has, thankfully, not yet made “nasty speech” an unprotected category.

Behind the Jury-Selection Curtain: Challenges for Cause

A commenter on this post asks:

I do have a few questions on challenges for cause. Mostly, how are they resolved? Is it entirely about negotiation to consensus and good faith, or does the judge have complete discretion? Also, what happens if you don’t have a large enough panel remaining for a strike zone of 32 (e.g. thirty nullificationists show up that day)? Do you just have fewer peremptory challenges, or do you go get a new panel?

The judge does not have discretion to deny a challenge for cause once the law has been explained to the juror and it has been established that the juror cannot follow the law.

That the judge does not have discretion to do something does not mean that the judge can’t do it or won’t do it. It just means that if the judge does it it may be grounds for reversal on appeal.

So let’s say that you’re a potential juror, and you explain that you can’t presume my clientto be innocent because he’s charged with burglary of a motor vehicle and someone broke into your car recently and you’re too angry about it to see straight. I challenge you for cause. The judge denies my challenge. What I have to do next is preserve error—to make a record for the court of appeals so that they can see that the judge screwed up, that I gave her a chance not to, and that my client was harmed by the screwup.

  • The jury selection is on the record—that is, the court reporter is taking it down. That’s the first step.
  • The second step is to make sure the strike lists—the jury lists with the State’s and the defense’s strikes—are on the record. This usually happens as a matter of course.
  • The third step is to make a timely and specific objection. This is almost always a requirement for preserving error in trial. I have to tell the judge what she has just done (or is about to do) wrong. In this context, I do it by making the challenge for cause.
  • Then I have to use a peremptory challenge to remove you from the jury. That’s the fourth step.
  • After I’ve removed you from the jury, the fifth step is to use up the rest of my peremptory challenges. If I only use nine peremptory challenges, the court of appeals will say that my client wasn’t harmed by the denial of the challenge for cause.
  • Not only that, but I have to ask for more peremptory challenges, because additional peremptory challenges could fix the judge’s mistake. I have to keep asking until the judge denies me any additional peremptory challenges. That’s the sixth step.
  • The seventh step is to identify, for the record, an objectionable person seated on the jury on whom I would have exercised a peremptory challenge if I had one.

If I leave out any of those steps, the court of appeals will rule that the judge’s error in denying my challenge for cause was harmless error and affirm the conviction on appeal. As you might imagine, trial lawyers more often than not miss a step; that’s why my paper has checklists of steps to preserve error in this and other circumstances. My hope is that defense lawyers will keep my paper handy and refer to the checklists in trial.

If we had a panel of sixty with thirty nullificationists, the judge would probably look cockeyed at the prosecutor and ask her if she really wants to try a case that half the population thinks shouldn’t be prosecuted. If the prosecutor wanted to go on, the judge could carry on—since the parties aren’t privy to each other’s strikes, and since they don’t have to use all of their strikes, it’s possible that the defense and State would not strike a total of twenty people. If they did and a jury of twelve could not be formed, the panel would be busted and the usual practice is to send that panel home and try again the next day with a larger group.

Jury Selection Behind the Scenes

Experienced trial lawyers will often tell you that "jury selection" is misnamed—it's actually jury deselection. 

Different jurisdictions use different methods. In a Texas non-capital felony trial, the jury panel is ordinarily sixty people. Each juror is assigned a number. The court brings the panel in to the courtroom and lines them up on the benches in numerical order—one through twelve on the first row, for example, thirteen through twenty-four on the second row, and so forth. (Lawyers often refer to the jurors by number instead of name because numbers are easier to keep track of.)

The judge talks to the jurors first. Some judges will talk for a few minutes and leave the lifting to the lawyers, and some judges will talk for hours. Usually the judge will introduce the jurors to general principles—the presumption of innocence, the right to remain silent, the burden of proof—and establish that all of the jurors can follow the law.

After the judge, the prosecutor takes her turn. She will usually talk about the elements of the case and the legal principles that she thinks are important to the case. If, as in many Texas felony cases, the defendant has chosen to have the jury set punishment, she will commit the jurors to considering the top end of the punishment range. She'll also ask questions intended to find the people who might be prejudiced against the State or the applicable law.

After the prosecutor, the defense lawyer takes his turn. He might talk about the legal principles that he thinks are important, commit the jurors to considering the bottom end of the punishment range, and seek out people prejudiced against his client or his defense.

In most non-capital cases all of this questioning is done in the presence of the entire panel. The goal is not to choose twelve jurors as much as to find and eliminate the least favorable jurors and indoctrinate those who remain. Potential jurors familiar with this heuristic can hack jury selection by talking a lot if they don't want to serve, or keeping their mouths shut if they do.

The lawyers will not usually talk to the jury about the facts of the case. While talking about the facts of the case is not legally prohibited, most lawyers think it is. 

One big no-no in jury selection is improper commitment questions. A commitment question is a question that asks a juror to commit to doing or not doing something ("if the State doesn't prove its case beyond a reasonable doubt, will you acquit?"). An improper commitment question is a question that asks a juror to commit to doing or not doing something that the juror is not required to do or not do ("if you learn X, will that create a reasonable doubt?") or that includes unnecessary facts ("will you consider probation if the defendant is gainfully employed?"). The facts-of-the-case hobgoblin probably arises from a misunderstanding of the rule against improper commitment questions.

After the parties talk to the jurors, the lawyers approach the judge, out of the jury's hearing, with their challenges for cause. A challenge for cause is a reason to remove ("strike") a potential juror who for some reason cannot follow the law. The prosecutor will read the judge her list of challenges for cause ("Number two—can't consider full range; Number six—can't follow the law; Number twelve—can't judge; Number fifteen—one-witness rule" and so forth), the defense will agree or object to each challenge. Then the defense will read the judge his list of challenges for cause and the State will agree or object. It is during this phase that jurors will commonly be called up to the bench so that the judge can resolve challenges for cause. The judge will rule on each contested challenge for cause.

The judge and the lawyers then check and doublecheck which jurors have been challenged for cause, and figure out what the "strike zone" is. The strike zone is the group of jurors who might make it onto the jury—the first thirty-two who haven't been struck for cause.

Why thirty-two? Because after the challenges for cause, the lawyers retire to their corners and mark off their peremptory challenges. Peremptory challenges are strikes for any reason (other than race or sex; challenges based on race or sex are constitutionally forbidden). Each lawyer can use ten peremptory challenges in a Texas non-capital felony case. Twelve plus twenty equals thirty-two.

So the lawyers separately mark their peremptory challenges on their jury lists, and then turn the lists in to the clerk, who collates the strikes and makes a list of the first twelve unstruck jurors. The lawyers double-check the list (to make sure that no juror who was struck is on the list) and the judge calls the names of the twelve jurors and excuses the rest with the thanks of the court and work excuses.

(Special rule: alternate jurors. If there are going to be alternate jurors, the strike zone for the alternates includes the first three or four (if one or two alternate jurors are to be chosen) or seven or eight (if three or four alternate jurors) unstruck jurors past the strike zone. Each side can use one additional strike (if one or two alternate jurors) or two additional strikes (if three or four alternate jurors) in this alternate strike zone.)

My paper on the law of jury selection in Texas is available on Scribd. Enjoy.