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Friday links

It’s been a quiet week in the Wisconsin Court of Appeals in terms of criminal law-related cases, so we thought we’d offer you some other things to read this weekend—and beyond!

Apple v. FBI: There’s been lots of coverage of Apple’s resistance to a federal court order that it help the FBI disable the encryption of an iPhone used by one of the shooters in San Bernardino. While this particular fight arises under a federal statute, the ubiquity of smart phones means we will likely be seeing similar issues arising under state law. For some initial thoughtful commentary on the issue, check out Orin Kerr’s post and this post by Robert Chesney, at the University of Texas School of Law.

A new challenge to restitution? Under State v. Dugan, 193 Wis. 2d 610, 624, 534 N.W.2d 897 (Ct. App. 1995), restitution ordered under § 973.20 is not “potential punishment” under § 971.08(1)(a), and thus a judge need not advise the defendant during the plea colloquy that the court could order restitution. But if restitution isn’t “punishment” for purposes of the plea colloquy, it sure is for purposes of sentencing. See. e.g., State v. Walters, 224 Wis. 2d 897, 591 N.W.2d 874 (Ct. App. 1999) (restitution “is a remedy that belongs to the State … while the supreme court acknowledged a restitution goal of making the victim whole in regard to special damages sustained, which goal appears to benefit the victim, the court grounded its decision on the State’s penal goals”), and the express terminology of § 973.20(1r): “When imposing sentence or ordering probation …, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution[.]” So if restitution is a “penalty” for sentencing purposes, isn’t it subject to the excessive fines limitations in the state and federal constitutions? It’s an argument worth making (especially now that any ability-to-pay limitation has been rendered meaningless by cases like this). For assistance in crafting this argument, take a gander at this recent paper on the topic. (Thanks to a stalwart friend of On Point for the tip and idea!)

Eyewitness identification reform in Texas? Yes, Texas! For a journalistic take, see here; and for an expert’s critique, here.

Tired of reading? Listen to this story from NPR. The gist: Up until the early 1980s juries in Maryland criminal cases were instructed that they were the judges of both the facts and the law, and that the opinion of the judge on the law was advisory only. Recently the Maryland Court of Appeals reversed its prior position and held that this rule violated due process, since juries were effectively permitted to,e.g., hold a defendant’s silence against him or her, convict on less than proof beyond a reasonable doubt, etc. As a result, a bunch of geriatric inmates have been paroled and, so far, not one has violated a condition of release. NPR also did a follow-up story about the victims’ families’ dissatisfaction with the early release.

Tired of listening? Looking for long read on a narrow topic? Consider a dense article about the “original” 4th Amendment for your research files. Or maybe one on Griffin v. California and its rule against drawing an adverse inference from a defendant’s silence.

Remember the Bluebook? Of course you do! As described here, the publisher thinks an upstart, streamlined system of citation called #BabyBlue might violate its copyright, but it may be the plain old Bluebook that has the copyright problem. Now, which “random and counterintuitive” Rule was it again that tells us how, when, and where to put in a “©” symbol?

Finally, courtesy of the Volokh Conspiracy, an amusing legal read, though not in a criminal case.

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