An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.

A final judgment essentially means conviction. Generally, if a person is found not-guilty there is little reason to appeal. The rule also covers orders which affect the substantial rights of the defendant. In these cases, you don’t need to wait until the completion of trial to file the appeal.

The Montana Rules of Appellate Procedure require that such an appeal be taken within 60 days after entry of the judgment which is the basis for the appeal. This is an important, and hard deadline. Although the rules allow for out-of-time appeals, they are only to be granted “in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice.” M.R.App.P. 6. File your appeal on time. If you plan on hiring an appellate attorney, contact him quickly – ideally before the trial has concluded. You should never plan on being granted an extension on your appeal.

The appeal is initiated by filing a notice of appeal with the Clerk of the Supreme Court in Helena. A copy of the notice must be filed with the Clerk of the District Court where the case originated and on all parties. This is a relatively simple step which can be accomplished fairly quickly once the decision to appeal has been made. All the more reason to comply with the time limits.

Around 2002, then 28 year old Neufeld began having sexual intercourse with then 13 year old K.B.  Neufeld videotaped himself with K.B. and photographed the girl in sexual poses and performing sexual acts.  K.B.’s father discovered some of the photos, contacted the police, and Neufeld was arrested.  He was charged with sexual intercourse without consent in state District Court, and with sexual exploitation of children, receipt of child pornography, and possession of child pornography in federal court.  He pled guilty to the federal charges of sexual exploitation of children and possession of child pornography, and received a sentencing enhancement because the offense involved the commission of a sexual act on a minor.

After his federal conviction, Neufeld moved to dismiss the state charges based on § 46-11-504(1), MCA, which provides in pertinent part:

When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution if:

(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction:

The majority ruled that “the prohibited conduct in this case [sexual exploitation of children] necessarily included sexual intercourse with a minor.”  Neufeld, ¶ 17.  And that “under the facts of this case the offenses of sexual exploitation of children and sexual intercourse without consent are equivalent.”  Id. at ¶ 17.

Justice Rice concurred, noting his belief that only the sentencing enhancement triggered the provisions of § 46-11-504, MCA, arguing that the federal offense of sexual exploitation of children did not necessarily include sexual intercourse.

Download State v. Neufeld

In Herring, SCOTUS was presented with the issue of whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and arrest him. Chief Justice Roberts, writing for the majority, held that “[w]hen police mistakes are the result of negligence such as that described here, rather than systemic errors or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way.”

According to the majority, the exclusionary rule is not an individual right and applies only when it will result in appreciable deterrence. Because originally the purpose of the exclusionary rule was to provide incentive for the government to stop violating suspect’s constitutional rights, a Fourth Amendment violation does not necessarily mean that the exclusionary rule applies. Instead, “[t]he deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” In conducting the balancing test required by the exclusionary rule, the more culpable the officers, the more reason to suppress the evidence. Triggering the exclusionary rule requires deliberate, reckless or grossly negligent conduct on the part of the officers under the majority opinion. Recurring or systemic negligence are also mentioned.

As Ginsburg’s dissent points out, this seems to be assuming that the exclusionary rule “is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless.” The problem, as she mentions, is that this contradicts a basic assumption of tort law – that liability for negligence creates an incentive to act with greater care. Justice Ginsburg also points out that the exclusionary rule is the only significant means of redress an individual has in a situation like Herring’s.

We’ll have to wait to see the ultimate significance of this opinion. In some ways, the facts of Herring are quite specific and provide ample grounds for distinctions. At one point the majority describes the error at issue as a result of isolated negligence attenuated from the search. Limited to situations like that, the decision is of relatively little consequence.

On the other hand, the majority opinion certainly supports the proposition that negligent violations of the Fourth Amendment are immune from the exclusionary rule. This would be a significant expansion of the so-called “good faith” exception and blow to what protections remain of the Fourth Amendment.

If I were arguing for suppression in federal court post-Herring, I would latch on to the attenuation language and hold on to with everything I had. But maybe that’s just me…

Herring v. U.S.