Blog Jay Leiderman Law

Virginia Lawyers Weekly

Bar charges prosecutor with discovery misconduct (“The Virginia State Bar has charged a prosecutor with ethical misconduct for allegedly failing to share helpful evidence with a criminal defendant’s attorney. Through her attorney, the prosecutor said she did not know about most of the evidence in question, and did not believe that other evidence could have helped the defense.”)

In jurisprudence, prosecutorial misconduct is “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.” It is similar to selective prosecution.

Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland explained prosecutorial misconduct meant “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”

Prosecutors are entrusted with determining who will be held accountable when a crime occurs. They hold a great deal of power. They work with the police as they gather evidence and build a case against a suspect and then they take that case to court and are charged with convincing a jury of the guilt of the suspect. First a foremost, it is the prosecutor’s job to seek justice and present the judge and jury with facts and legal arguments that result is the conviction of the guilty defendant.

Sometimes, prosecutors find evidence that would tend to exonerate the person they are trying to convict. Because Prosecutors are charged with presenting the truth, the prosecution is obligated to turn over all exculpatory evidence to the defense.

prosecutorial misconduct

Jay Leiderman


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The trial court did not err by failing to conduct a Kelly hearing on the reliability of fingerprint evidence. 
Defendant argued the trial court erred when it admitted fingerprint evidence connecting him to the crimes because the scientific community has rejected the reliability of fingerprint evidence. However, fingerprint evidence is not subject to a Kelly type foundational hearing because it’s not a novel scientific technique and does not have a misleading aura of certainty. And fingerprint evidence, in general is not so unreliable that it should be excluded.
People v. Rivas 238 Cal.App.4th 967 (2015)

fingerprint evidence

Is fingerprint evidence as reliable as the public believes it is? Maybe not.

We approach defendant Valadez’s contention that fingerprint evidence must be excluded as unreliable with two separate, but complementary, lines of reasoning. First, we conclude, as did Division Four of the First Appellate District in O.D.(Humes, J.), that expert fingerprint evidence is not subject to a foundational hearing under Kelly, supra, 17 Cal.3d 24, because fingerprint 976*976 evidence is not a novel scientific technique and does not have a misleading aura of certainty. And second, we conclude, as did the Seventh Circuit Court of Appeals (Posner, J.) in U.S. v. Herrera (7th Cir. 2013) 704 F.3d 480 (Herrera), that fingerprint evidence, in general, is not so unreliable that it must be excluded.


In his briefing on appeal, defendant Valadez avoids discussion of Kelly; instead, he asserts, generally, that fingerprint evidence is so unreliable that it does not meet the threshold of admissibility. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-772 [149 Cal.Rptr.3d 614, 288 P.3d 1237] [trial courts play vital gatekeeping role to insure reliability of underlying conceptual or methodological basis of expert testimony].) We conclude that fingerprint evidenceis sufficiently reliable to be admissible, as was found by the Seventh Circuit Court of Appeals in Herrera. We quote the Herrera decision at length in this regard because we find it persuasive:

“The … issue relating to the fingerprint evidence is whether [the fingerprints found on the evidence] were the defendant’s. They were latent rather than patent fingerprints. Patent fingerprints are made by pressing a fingertip covered with ink on a white card or similar white surface, and are visible.[[2]] Latent fingerprints are prints, usually invisible, left on a smooth surface when a person touches it with a finger or fingers. Laboratory 979*979 techniques are employed to make a latent fingerprint visible so that it can be compared with other fingerprints. The latent prints on the [evidence] in this case were found by a fingerprint examiner to match the defendant’s patent prints made in the course of the criminal investigation, and the government therefore offered the match as evidence of the defendant’s participation in the [crimes]. The defendant argues that methods of matching latent prints with other latent prints or with patent prints have not been shown to be reliable enough to be admissible as evidence under the standard for reliability set forth in [federal rules and decisions].” (Herrera, supra, 704 F.3d at pp. 483-484.)

(5) “The [ACE-V] methodology requires recognizing and categorizing scores of distinctive features in the prints [citations], and it is the distinctiveness of these features, rather than the ACE-V method itself, that enables expert fingerprint examiners to match fingerprints with a high degree of confidence. That’s not to say that fingerprint matching (especially when it involves latent fingerprints, as in this case) is as reliable as DNA evidence, for example. Forensic DNA analysis involves comparing a strand of DNA (the genetic code) from the suspect with a strand of DNA found at the crime scene. The comparison is done with scientific instruments and determines whether the segments are chemically identical. Errors are vanishingly rare provided that the strands of code are reasonably intact.” (Herrera, supra, 704 F.3d at p. 485.)

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Jay Leiderman and Vivien Lesnik Weisman and are featured in the below picture.  Jay was a participant, a “talking head” in a critically acclaimed documentary that Vivien wrote, directed and and produced.  Through this, they have moved to the forefront of the war on hackers, otherwise knows as the “Nerd Scare.”  Anonymous Video keeps the hope alive by publicizing the plight of incarcerated members of Anonymous, most, if not all of whom are political prisoners.  They were gracious enough to make this poster of Jay Leiderman and Vivien Lesnik Weisman. Jay and Vivien have been vocal critics of the government crackdown on hacktivists.

The documentary is available for free on YouTube here:  The video features Andrew Aurenheimer aka weev, Jeremy Hammond and Barrett Brown.  All three are political prisoners – victims of the “Nerd Scare.” Jeremy was sentenced to 10 years for hacking Stratfor, a “private CIA” global intelligence company.  Barrett was sentenced to 63 months for sharing a link to the data dump from Jeremy’s Stratfor hack.  Weev was sentenced to 41 months for exposing a flaw in AT&T’s websites relating to the first iPads by giving the story to Gawker.

IMDB says of The Hacker Wars: “Ripped from international headlines, The Hacker Wars takes you to the front lines of the high-stakes battle over the fate of the Internet, freedom and privacy.”  The movie received a very favorable positive score of 73% on Rotten Tomatoes.  The New York Times said that “the behavior it scrutinizes speaks to the essence of democracy and the very definition of citizenship…”

If you have not seen the Hacker Wars, you should.

Jay Leiderman and Vivien Lesnik Weisman

@AnonymousVideo’s poster of Jay Leiderman and award winning filmmaker Vivien Lesnik Weisman. Jay Leiderman was one of the featured people in Vivien’s film “The Hacker Wars”






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Defendant had no 4th Amendment reasonable expectation of privacy in his shared folder associated with the P2P (peer-to-peer) network. (312) (425)
The evidence leading to defendant’s arrest was obtained when police used software that targets peer-to-peer file-sharing networks to identify IP addresses associated with known digital files of child pornography. Defendant argued the use of this software violated his Fourth Amendment rights by infringing on his reasonable expectation of privacy on his computer. However, defendant had no reasonable expectation of privacy in his shared folder associated with peer-to-peer network.
People v. Evensen ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2016 D.A.R 10784 (1st Dist. 2016) October 27, 2016 (A145162)


What is P2P or peer-to-peer?


A typical computer network as compared with a P2P (peer-to-peer) network

In its simplest form, a peer-to-peer (P2P) network is created when two or more PCs are connected and share resources without going through a separate server computer. A P2P network can be an ad hoc connection—a couple of computers connected via a Universal Serial Bus (USB) to transfer files. From

Peer-to-peer (P2P) is a decentralized communications model in which each party has the same capabilities and either party can initiate a communication session. Unlike the client/server model, in which the client makes a service request and the server fulfills the request, the P2P network model allows each node to function as both a client and server. from

The original peer to peer network was Napster.  Popular P2P networks since then have been LimeWire, uTorrent, BitTorrent, Pando and Emule, to name just a few.

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Penal Code § 653f(d) states, in relevant part:

  • Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170.
  • This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment.

The evidence supporting Count 3, an alleged conspiracy to transport, sell, or distribute a controlled substance, supports probable cause for a solicitation under § 653f, not a conspiracy under § 182.  It is “firmly established” that a defendant cannot be prosecuted under a general statue—such as the conspiracy statute—where the conduct alleged is prohibited by a special, more specific statute.[1]  (People v. Mayers (1980) 110 Cal.App.3d 809, 813.)  This rule, sometimes called the Swann-Gilbert rule or the “special over the general” rule is “necessary to prevent a general statute from swallowing up the exceptions contained in specific enactments.”  (Id. at p. 814; People v. Gilbert (1969) 1 Cal.3d 475; People v. Swann (1963) 213 Cal.App.2d 447.)

The companion cases of People v. York (1998) 60 Cal.App.4th 1499, and People v. Sanchez (1998) 60 Cal.App.4th 1490, illustrate application of the Swann-Gilbert rule.  Both York and Sanchez arose out of “reverse sting” operations in which police officers posed as street-level cocaine dealers in areas known for drug activity.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)  Both defendants approached officers participating in the sting and said “rock,” which the officers interpreted as requests to purchase rock cocaine.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1493.)  In York, the defendant also said, “30,” indicating a quantity; the officer told him to wait, and the defendant was subsequently arrested.  (York, supra, 60 Cal.App.4th at p. 1502.)  In Sanchez, the defendant actively bartered with the officer, offering to trade a car stereo and a vest for $30 worth of cocaine.  (Sanchez, supra, 60 Cal.App.4th at p. 1493.)  Both defendants were charged with attempted possession of cocaine in violation of Penal Code § 664 and Health & Safety Code § 11350, and in both cases, the trial court dismissed the charges, reasoning that under the Swann-Gilbert rule, a more specific solicitation statute, § 653f(d), preempted prosecution of the alleged conduct as an attempted drug possession.  (York, supra, 60 Cal.App.4th at pp. 1501-1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)



The Mexican Mafia Conspiracy to commit assault, drug trafficking, robbery and extortion was the largest ever prosecution in the history of Ventura County, California


The Court of Appeals for the Fourth District upheld dismissal of York’s charges.  It reasoned that the crime of attempt requires the alleged acts “go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption.”  (York, supra, 60 Cal.App.4th at pp. 1505-1506 [internal quotation marks omitted; emphasis in original].)  “Merely soliciting another is not the ‘act or acts’ as would ordinarily result in the crime . . . .”  (Id. at p. 1506.)  For conduct to go beyond solicitation, the prospective narcotics buyer must “at least” display or proffer money.  (Ibid. [emphasis in original].)  The defendant did nothing more than ask for the drugs; he committed the “exact conduct” prohibited by Penal Code § 653f.  (Id. at p. 1503.)  As such, the Swann-Gilbert rule barred prosecution under the more general attempt statute.  (See id. at p. 1504.)

The same court, however, reversed the dismissal of Sanchez’s charges.  It distinguished York on the facts, reasoning that the Sanchez defendant, unlike the York defendant, committed “all the acts which a buyer can do short of actually taking possession of the drugs . . . .”  (Sanchez, supra, 60 Cal.App.4th at p. 1497.)   By negotiating a deal and actually tendering the stereo and vest, the defendant went beyond the specific conduct prohibited by the solicitation statute.  (Ibid.)  His conduct could be punished as an attempted possession under the general attempt statute, § 664.  (Ibid.)

In this case, York controls.  A conspiracy, like an attempt, requires proof of an act in furtherance.  Conduct does not go beyond solicitation—either as an attempt or as a conspiracy—without more than mere preparation or agreement.  And with respect to Count 3 here, the evidence shows nothing more.  Just like the York defendant, Defendant requested a quantity of drugs; just like the undercover officer in York, Arreola agreed.  And unlike in Sanchez, there is no evidence Defendant negotiated a deal or tendered anything in exchange.  In short, like in York, Count 3 alleges the “exact conduct” prohibited by Penal Code § 653f; therefore, the Swann-Gilbert rule bars prosecution as a conspiracy.  Count 3 must be dismissed on that basis.

However, even if that argument fails in light of the newer amendments, there is still the lack of proof inherent in the conspiracy count, as discussed supra.  Indeed, Overt acts #1 through #4 detail a conversation wherein Defendant asks for “3.”  There is no indication that either ever secured “3” nor did they meet or tender anything in exhcange, per the evidence adduced.  The Deputy testified that “3” was code for an amount of drugs, but had no other specifics he could offer.

[1] This is true notwithstanding the newly-enacted subdivision (2) of 647f(d).  That provision only applies where a prosecution under some “other provision of law” would result in harsher punishment.  The thrust of Defendant’s argument here is that there is no “other provision of law” under which he may be punished.  There simply does not exist a conspiracy on these facts.



“A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.


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