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Criminal Legal News: September, 2026

Issue PDF
Volume 9, Number 9

In this issue:

  1. Buried in Plain Sight: How Digital Discovery Turns Disclosure Itself Into Concealment (p 1)
  2. New Jersey Supreme Court Announces Brady and Carter Materiality Standards Differ, Holding Carter’s “Probably Change the Jury’s Verdict” Test for New Trial More Stringent Than Brady’s “Reasonable Probability” Standard (p 17)
  3. New Jersey Supreme Court Orders Plenary Hearing Before Special Adjudicator on Reliability of Fingerprint Evidence, Holding Century of Judicial Acceptance Did Not Satisfy Trial Court’s Gatekeeping Obligation Under N.J.R.E. 702 (p 17)
  4. En Banc Eleventh Circuit Announces All Parents, Including Those Convicted of Child-Sex Offenses, Enjoy Fundamental Right to Live With Their Children, Holding Alabama Residency Prohibition Subject to Strict Scrutiny (p 19)
  5. Seventh Circuit Announces Courts May Examine Individual Officer’s Subjective Purpose When Assessing Whether Warrantless Administrative Inspection Was Pretextual, Holding Suppression Required Where Trooper’s Sole Motive for Stop Was Criminal Investigati (p 21)
  6. Hawai’i Supreme Court Announces Totality-of-the-Circumstances Good-Cause Standard Governing State Motions to Continue Based on Witness Unavailability (p 23)
  7. Massachusetts Supreme Judicial Court Announces Postconviction Forensic Testing Statute Permits Digital Forensic Analysis of Cellphones, Holding Chapter 278A Not Limited to Tangible Evidence Testable for Biological Material (p 26)
  8. SCOTUS Holds § 922(g)(3) Prosecution Based Solely on Regular Marijuana Use, Without Individualized Proof of Dangerousness, Violates Second Amendment (p 28)
  9. FBI Approves Rapid DNA Workflow for CODIS (p 29)
  10. Relevant Conduct: How Federal Sentencing Law Punishes More Than the Crime of Conviction (p 30)
  11. Ohio Supreme Court Announces Post-Verdict Judgment of Acquittal Is Not “Final Verdict” Under R.C. 2945.67(A) and Overrules Contrary Precedent, Holding State May Appeal Such Judgment by Leave of Court of Appeals but Not as of Right (p 35)
  12. Pennsylvania Supreme Court Announces Theft by Deception Is Not Continuing Offense While Receiving Stolen Property Continues Only Until Defendant Disposes of Stolen Property (p 36)
  13. Michigan Supreme Court Holds Miranda Waiver Invalid Where LSD-Intoxicated, Hospitalized Defendant Lacked Capacity to Understand Rights Read to Him (p 40)
  14. Florida Supreme Court Announces District Courts of Appeal Have Jurisdiction to Review Denial of Downward Departure Sentence, Holding Sentencing Order Is Final Order Appealable as Matter of Right (p 41)
  15. New Mexico Supreme Court Announces Article II, Section 10 Exclusionary Rule Governs Admissibility of Evidence Seized Outside State by Non-New Mexico Officers (p 43)
  16. Virtual Reality Intervention Improves Police-Interaction Skills for Autistic Individuals (p 44)
  17. Ninth Circuit Announces Murder-for-Hire Resulting in Death Under 18 U.S.C. § 1958(a) Is Not Categorically Crime of Violence and Cannot Serve as Predicate Offense for Solicitation Under 18 U.S.C. § 373(a) (p 45)
  18. Louisiana Supreme Court Announces Framework Governing Factual Innocence Claims in First Application of La. C.Cr.P. Art. 926.2, Holding Second-Step Review Encompasses All Relevant Evidence (p 47)
  19. Eleventh Circuit Holds § 2255 Motion Not “Second or Successive” After Intervening Amended Judgment Corrected Unlawful Sentences, Even as to Claims Concerning an Undisturbed Count (p 48)
  20. NEWS IN BRIEF (p 49)

Buried in Plain Sight: How Digital Discovery Turns Disclosure Itself Into Concealment

by David Kim

At the close of Derrick Ulett’s murder trial, his lawyer pointed the jury toward a gap in the People’s case. Ruben Alexandre had been shot in March 2008 in front of an apartment building at 48 St. Paul’s Place in Brooklyn, and that building had …

New Jersey Supreme Court Announces Brady and Carter Materiality Standards Differ, Holding Carter’s “Probably Change the Jury’s Verdict” Test for New Trial More Stringent Than Brady’s “Reasonable Probability” Standard

by David Kim

The Supreme Court of New Jersey unanimously held that the materiality standard governing a claim under Brady v. Maryland, 373 U.S. 83 (1963), is not the same as the materiality standard governing a motion for a new trial based on newly discovered evidence under State …

New Jersey Supreme Court Orders Plenary Hearing Before Special Adjudicator on Reliability of Fingerprint Evidence, Holding Century of Judicial Acceptance Did Not Satisfy Trial Court’s Gatekeeping Obligation Under N.J.R.E. 702

by Douglas Ankney

The Supreme Court of New Jersey unanimously held that a trial court confronted with a substantive challenge to expert fingerprint testimony must assess the evidence’s reliability before admitting it and may not discharge its gatekeeping obligation by relying on a century of judicial acceptance. Because …

En Banc Eleventh Circuit Announces All Parents, Including Those Convicted of Child-Sex Offenses, Enjoy Fundamental Right to Live With Their Children, Holding Alabama Residency Prohibition Subject to Strict Scrutiny

by Douglas Ankney

Sitting en banc, the United States Court of Appeals for the Eleventh Circuit held that all parents, including a parent convicted of possessing child pornography, enjoy a fundamental right under the Fourteenth Amendment to live with their children so that legislation burdening that right is …

Seventh Circuit Announces Courts May Examine Individual Officer’s Subjective Purpose When Assessing Whether Warrantless Administrative Inspection Was Pretextual, Holding Suppression Required Where Trooper’s Sole Motive for Stop Was Criminal Investigati

by Douglas Ankney

The United States Court of Appeals for the Seventh Circuit held that a court may examine an individual officer’s subjective purpose in assessing whether a warrantless administrative inspection was a pretext for a criminal investigation, rejecting the Government’s contention that such inquiries are confined to …

Hawai’i Supreme Court Announces Totality-of-the-Circumstances Good-Cause Standard Governing State Motions to Continue Based on Witness Unavailability

by David M. Reutter

The Supreme Court of Hawai’i unanimously rejected in its entirety the four-factor continuance test of State v. Lee, 856 P.2d 1279 (Haw. Ct. App. 1993), and announced the standard governing a State motion to continue based on witness unavailability. A court is first to …

Massachusetts Supreme Judicial Court Announces Postconviction Forensic Testing Statute Permits Digital Forensic Analysis of Cellphones, Holding Chapter 278A Not Limited to Tangible Evidence Testable for Biological Material

by Richard Resch

The Supreme Judicial Court of Massachusetts unanimously held that G. L. c. 278A (“Act”), the Commonwealth’s postconviction forensic testing statute, permits digital forensic analysis of a cellphone. The Court rejected the Commonwealth’s contention that the Act applies only to laboratory testing of tangible items testable …

SCOTUS Holds § 922(g)(3) Prosecution Based Solely on Regular Marijuana Use, Without Individualized Proof of Dangerousness, Violates Second Amendment

by Douglas Ankney

The Supreme Court of the United States held that the Government’s prosecution of Ali Danial Hemani under 18 U.S.C. § 922(g)(3), based solely on his regular marijuana use and without individualized proof that his use rendered him dangerous, is inconsistent with the Second Amendment. Under …

FBI Approves Rapid DNA Workflow for CODIS

by Jo Ellen Nott

The FBI approved the first Rapid DNA workflow capable of generating qualifying crime-scene DNA profiles eligible for searching the national Combined DNA Index System (“CODIS”), a development that could significantly accelerate criminal investigations while raising concerns about how rapidly generated forensic evidence is used …

Relevant Conduct: How Federal Sentencing Law Punishes More Than the Crime of Conviction

by Richard Resch

Few features of the federal sentencing system have as much practical impact on defendants’ sentences as the issue of relevant conduct. Codified at §1B1.3 of the United States Sentencing Guidelines, the relevant conduct provision determines which acts and omissions a court may consider when calculating …

Ohio Supreme Court Announces Post-Verdict Judgment of Acquittal Is Not “Final Verdict” Under R.C. 2945.67(A) and Overrules Contrary Precedent, Holding State May Appeal Such Judgment by Leave of Court of Appeals but Not as of Right

by David Kim

The Supreme Court of Ohio held that a post-verdict judgment of acquittal entered by a trial court under Crim.R. 29(B) is not “the final verdict” excepted from R.C. 2945.67(A) and that the State may therefore appeal it by leave of the court of appeals, though …

Pennsylvania Supreme Court Announces Theft by Deception Is Not Continuing Offense While Receiving Stolen Property Continues Only Until Defendant Disposes of Stolen Property

by David M. Reutter

The Supreme Court of Pennsylvania held that theft by deception is not a continuing offense for purposes of the statute of limitations, while receiving stolen property (“RSP”) continues only so long as the defendant retains the stolen property. Construing for the first time the …

Michigan Supreme Court Holds Miranda Waiver Invalid Where LSD-Intoxicated, Hospitalized Defendant Lacked Capacity to Understand Rights Read to Him

by David Kim

The Supreme Court of Michigan held that the prosecution failed to establish that a hospitalized defendant who had ingested a large quantity of LSD knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that admitting the resulting statement was …

Florida Supreme Court Announces District Courts of Appeal Have Jurisdiction to Review Denial of Downward Departure Sentence, Holding Sentencing Order Is Final Order Appealable as Matter of Right

by David M. Reutter

The Supreme Court of Florida unanimously held that Florida’s district courts of appeal may review a trial court’s refusal to impose a downward departure sentence. The Court reasoned that a sentencing order is a final order of a trial court, that the Florida Constitution …

New Mexico Supreme Court Announces Article II, Section 10 Exclusionary Rule Governs Admissibility of Evidence Seized Outside State by Non-New Mexico Officers

by Richard Resch

On an issue of first impression, the Supreme Court of New Mexico unanimously held that Article II, Section 10 of the New Mexico Constitution and its exclusionary rule govern the admissibility of evidence in New Mexico courts even where that evidence was seized in another …

Virtual Reality Intervention Improves Police-Interaction Skills for Autistic Individuals

by Jo Ellen Nott

A clinical trial launched by researchers at the Children’s Hospital of Philadelphia (“CHOP”) and Saint Joseph’s University found that mobile virtual reality (“VR”) training can improve police-­interaction skills among individuals on the autism spectrum, with the strongest measured improvement appearing in reduced fidgeting during …

Ninth Circuit Announces Murder-for-Hire Resulting in Death Under 18 U.S.C. § 1958(a) Is Not Categorically Crime of Violence and Cannot Serve as Predicate Offense for Solicitation Under 18 U.S.C. § 373(a)

by David Kim

The United States Court of Appeals for the Ninth Circuit held that a violation of 18 U.S.C. § 1958(a) resulting in death is not categorically a crime of violence and cannot serve as a predicate offense for solicitation under 18 U.S.C. § 373(a). Congress intentionally …

Louisiana Supreme Court Announces Framework Governing Factual Innocence Claims in First Application of La. C.Cr.P. Art. 926.2, Holding Second-Step Review Encompasses All Relevant Evidence

by David M. Reutter

The Supreme Court of Louisiana, applying the state’s factual innocence statute for the first time, affirmed post-conviction relief vacating the first-degree murder conviction and death sentence of a prisoner whose trial rested on since-discredited bite mark and forensic pathology evidence. The Court held that …

Eleventh Circuit Holds § 2255 Motion Not “Second or Successive” After Intervening Amended Judgment Corrected Unlawful Sentences, Even as to Claims Concerning an Undisturbed Count

by David M. Reutter

The United States Court of Appeals for the Eleventh Circuit held that a motion under 28 U.S.C. § 2255 is not an unauthorized “second or successive” motion when it challenges a new, intervening amended judgment entered after the movant established in earlier § 2255 …

NEWS IN BRIEF

Alaska: The Anchorage Daily News reported that former Seward Police Department (SPD) Off. Matthew Susko, 40, was fined $600 on July 16, 2026, for unauthorized use of his smartphone while transporting a teenage arrestee in November 2024. Law enforcement officers are permitted emergency cellphone use while driving, but …

 

 

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