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Technology and Criminal Law: Under A Permanent Watching Eye?

Technology has not only changed, but keeps changing, how the law operates. In most ways, people feel that they understand more about the law than ever before but what happens when the law has an ability to watch someone, literally for the rest of their life? In many ways, these technological changes (usually improvements) in the law, should also mean that lawyers and the people they defend also must be making the smartest possible changes, to protect basic constitutional rights.

The bare accusation of sexual abuse against a child presents some of the most difficult issues in terms of guaranteeing a fair trial. Part of this dilemma in getting to “fairness” is based on the sad fact that abuse is all too common in America: every 73 seconds, an American is sexually assaulted; 1 of every 6 American women has faced an attempted or completed rape in her lifetime (14.8% completed, 2.8% attempted); 3% of American men have also experienced an attempted or completed rape in their lifetime. Child Protective Service agencies substantiate about 63,000 children each year as victims of sexual abuse. And stunningly: these present numbers are about half of the sexual assault rate reported in the 1990s. As the following case helps to show, it can be an ultimate test for justice, being sure that clients have picked the right, experienced criminal defense attorney.

II. Dealing Fairly With All Defendants

Child abuse allegations are seen as among the most challenging for the legal system, in trying to be fair in dealing with defendants. In the prosecution of Joseph Bursell (in 2018), one of the first important issues in his defense was whether or not the crime was so horrible that he should be subject to lifetime monitoring as a registered sex offender or not. The debate about whether he should be supervised for 30 years, or for the remainder of his life, showed the likelihood that his offense was going to be regarded as very violent. This added factor also raised the bar, for his defense attorney in making sure the defendant received fair treatment at every level of the case, regardless of the raw emotions involved.

The legal issue of the technology used to monitor Bursell went beyond even the facts of violence in his case. Because satellite-based monitoring can be so incredibly and permanently intrusive into any person’s life, Constitutional issues became vital to fairly deciding this case. Specifically, the 4th Amendment guarantees protections against unreasonable search and seizures. The defendant was appealing aspects of the conditions of his scheduled release (in 192 to 291 months). In the facts of this case, was lifetime satellite-based monitoring (SBM) a violation of the Defendant’s substantive or procedural Constitutional rights?

III.    Case By Case: Real Law

It’s already been mentioned how technology has changed the law. One effect has been to give a feeling that people have access to understanding even complicated legal opinions, as never before. Some of these most important assault cases, however, also show that it is more important than ever before to have the best possible criminal legal defense lawyer in North Carolina. The same technology that can monitor a convicted person, can play a part in building the case against them. As the case being discussed here also shows, the State’s AG has incredible resources to monitor and prosecute anyone accused of a crime. Generally, the more experienced the criminal defense lawyer is, the more cost-effective the defense is going to be in holding the AG to a fair process as well.

IV. Conclusions: Don’t Just Switch Horses

Abraham Lincoln said it when talking about why he thought he should be reelected. The North Carolina Supreme Court in this case also borrowed the same phrase: when discussing basic constitutional rights of a criminal defendant to a full review of their case on appeal. In a lot of ways, what this means is that the court must be able to respect an experienced criminal defense attorney to properly present Constitutional issues: more on this in a minute. But courts recognize criminal defense attorneys are crucial in order to make sure that the system keeps as honest as possible in having a full record on appeal. There was reason in this case to argue the 4th Amendment issue had not been properly argued. This issue became the major factor in Bursell’s case.

This case also had an interesting Court comment about the role of the court itself, regardless of what the state prosecution may have already established in the trial, and before an appeal. The Supreme Court used language saying that a Constitutional claim should be presented as early as possible in the case, so that it is not lost, including on appeal. In other words, North Carolina courts have said that (a) “Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal.” This quote can also show just how a defendant can be saddled with an inexperienced attorney. But an experienced criminal defense attorney can also point out crucial reasons to revisit ignored Constitutional issues. In this case, the Supreme Court majority decided that in applying a case-by-case approach to important issues, it could not simply ignore the Constitutional issues of life-time satellite monitoring. Thus, the Supreme Court agreed that the trial defense should have done a better job “preserving” (being specific in claiming and getting a court ruling) on SBM as a 4th Amendment issue. The Supreme Court had a duty, the criminal defense attorney on appeal pointed out, to apply another test or rule than just preserving an issue (Rule 2) to safeguard the defendant’s rights. In this case, it was necessary to apply Rule 2, the Supreme Court said in agreeing with the criminal defense attorney, to vacate the SBM order. This was to allow the trial court to hear all the important facts of the Defendant’s 4th Amendment rights and what are known as the Grady standards of reasonable privacy expectations. It was, in the end, a winning argument by the criminal defense attorney.

The Bursell case can also represent a strong limit on the ability of a non-lawyer to understand law. These cases are incredibly challenging, legally and emotionally. For example, even though an issue may be constitutionally vital, it must be presented in the right way during the trial or appeal. In this case, there was a debate about whether the defense attorney had done the right thing to preserve the constitutional issues raised. The court specifically said, essentially, that every case must be handled one at a time. The court observed: “precedent cannot create an automatic right.” If you or a loved one have been accused of an assault or crime, or involving any Constitutional claims or rights, please contact us.  You will speak with a Criminal Defense lawyer who can best answer your questions.  There is never a fee for this initial consultation.

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