New scanners break child porn laws

No doubt everyone has seen this via Drudge but an interesting accident at the intersection of security and civil liberties nonetheless:

The rapid introduction of full body scanners at British airports threatens to breach civil protection laws which ban the creation of indecent images of children, the Guardian has learned.

Privacy campaigners claim the images created by the machines are so graphic they amount to “virtual strip-searching” and have called for safeguards to protect the privacy of passengers involved.

. . .

They also face demands from civil liberties groups for safeguards to ensure that images from the £80,000 scanners, including those of celebrities, do not end up on the internet. The Department for Transport confirmed that the “child porn” problem was among the “legal and operational issues” now under discussion in Whitehall after Gordon Brown’s announcement on Sunday that he wanted to see their “gradual” introduction at British airports.

. . .

The decision followed a warning from Terri Dowty, of Action for Rights of Children, that the scanners could breach the Protection of Children Act 1978, under which it is illegal to create an indecent mage or a “pseudo-image” of a child.

(Original Post from 1/5/10)


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The Court System in Penobscot County

Criminal behavior warrants a chance for a ride through the court system. If you have been charged with a sex crime, you will be tried differently than if you had a possession of drugs charge. The difference lies in the appropriate court.


Penobscot County Superior Court

Serving the Bangor Area


The Supreme Judicial Court is used as the ultimate guide to discretion. When a law is not clear and needs to be applied to the situation to remain constitutional, one of the seven Supreme Court justices will look at it. After they have deliberated on the issue, they will present a written opinion denoting whatever position they arrived at. Once this report is released, the decision can hold up in court concerning similar matters so not to bother the justices again. Also, when an appeal is made concerning felony sentencing, the appellate court will hear and offer opinions to the jurisdiction. Concerning criminal defense lawyers such as Attorney Steve Smith, they play guardian to all matters concerning those who have passed the bar. Bottom line; the Supreme Court has the last word on all things federal law and occasionally state as well, if they feel it’s significant enough to give attention to.  


Maine Superior Court exemplifies a state jurisdiction that has almost complete power over all criminal and civil matters. The other courts that are mentioned later on have limited jurisdiction over certain actions. Bangor municipal court is one example of a ‘lower court’. Maine has a unique job description for our superior court. We have effectively used the authority of this higher court and combined its purpose to include appellate and trial court. It pretty much covers all the bases when it comes to federally regulated legislation.


District Court is another way to effectively manage the constitutionality of each little case. With the Supreme Court’s wisdom many rungs up the ladder, most cases will never even come close to any one of the seven justice’s desks. While Superior Court is the Supreme Court’s messenger to the state, District Court bridges the gap between state and federal ruling. With 89 districts in the United States (94 including the islands) each state develops its District Court system in the best interest of its local citizens.


Maine, along with other states, has separated its lower courts to attend to specific matters. For example, probate court deals with many post-mortem family cases such as estates, wills, guardianship and other contractual issues that are common. Another type of court that’s well known is traffic court, which is self explanitory. There is also small claims court which deals strictly with civil cases amounting in $6,000 or less.


The need for various types of courts ensures that your rights are being protected to the best of the federal government’s ability. By putting a managerial system in place, each state can effectively govern its people. This is called the system of checks and balances. Its unofficial sounding name simply explains its purpose; to make sure everyone is on the same page with legislation. This ranges from the Supreme Court down to the passing on of information in a town meeting.

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Received a Criminal Charge

When a crime is committed, the government will acknowledge it by issuing a criminal charge against the perpetrator. There can be one or more counts, depending on the nature of the crime and the circumstances. Criminal charges can come in a few forms:

  1. Indictment- The grand jury has formally brought forth accusations of criminal misconduct.


  1. Information- Similar to an indictment but brought forth by a prosecuting attorney.


  1. Complaint- When a private party files a pleading providing sufficient reason for a criminal charge.


Depending on the case, a complaint will be brought out against the defendant and the grand jury will decide if it will lead to an indictment. If it does, summons will be issued to appear in court. Failure to appear to these summons could transpire into a warrant for arrest.

What is a Plea Bargain?

Once charged with a crime, a plea bargain will be discussed. A plea bargain in a criminal case is equivalent to a settlement in a civil case. Plea bargains are used to negotiate and often speed up the criminal procedure, after indictment. 9 out of 10 criminal cases end up with a plea agreement, skipping the cost and time of a trial. The 1 out of 10 criminal cases that go to trial are usually lengthy and complicated. This agreement would go down between the prosecutor and the defendant. All plea agreements have a few things in common:

  • They begin with pleading ‘Guilty’ or ‘No Contest’ (nolo contendere)


  • There is a charge or sentence reduction


  • There is always a conviction

Once a guilty plea is established, the ramifications on your criminal record would be as they would after a trial, being found guilty.

Maine Criminal Defense Attorney


Once guilt has been proven, the judge will deliver a sentence for punishment ( as in “Crime and…”).  A convicted criminal may receive one or more types of punishment, reviewed and sanctioned by the United States Sentencing Committee.

  • Imprisonment- Incarceration, incapacitation and societal protection, or the state of being ‘locked up’.


  • Fine- Remedy in the form of monetary restitution to victims and/or the state.


  • Other Punishments- Including deterrence, rehab, retribution or other forms that are neither cruel nor unusual.

It is important that criminal charges are handled by an attorney who is not only knowledgeable but also experienced.

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Evidence, Doubt and a Burden of Proof

Divorce and Family LawBurden of Proof means that one party is responsible for proving the guilt of a criminal while another party defends innocence. A qualified criminal defense attorney is expeienced with the best action to take.

This goes without saying but proof needs to be present if a conviction is to occur. There are a few ways that proof can be collected and is regulated by the Standards of Proof.

Scintilla is a word meaning the slightest amount of evidence that could be considered. A step up from No evidence.

Reasonable Suspicion constitutes as proof in a case where one side has the burden of proof. Reasonable suspicion “requires specific, articulable and individualized suspicion” for it to be considered proof. This was ruled in conjunction with the case Terry v Ohio 392 U.S. 1 (1968). This allows to minimize poor police discretion.

Reasonable to believe is another way to prove guilt or innocence. Criminal defense lawyers know that reasonable suspicion occurs before an arrest or any confrontation between the police and civilian. Reasonable to believe has to do with post arrest and search of vehicles or property in conjunction with the suspected crime. In many cases it is reasonable to believe that there is evidence hiding somewhere, after reasonable suspicion has been accepted.

Probable Cause is born from suspicion. The different levels of suspicion can warrant different types of police interaction. For example, an officer does not need any reason to walk up to you on the street. They would need some type of suspicion to search you and probable cause to book you for a violent crime or crimes of that nature.

Some Credible Evidence refers to the minimum required amount of evidence in relation to a suspected crime to request a warrant. This is mostly used in the first stages of documenting proof.

Substantial Evidence is often used to discriminate between factual evidence and other types. It almost splits the case into two categories for reference on the ruling which is helpful in federal court.

Preponderance of the Evidence is a way to say that if the probability of truth is present, then it will be considered true. The area of family law uses this standard of proof because it is hard to be scientifically factual in some civil cases.

Clear and Convincing Evidence is the next level of factual from the afore mentioned Preponderance of Evidence. The keyword in the difference between the two is ‘substantially’. If the evidence is ‘substantially’ more likely to be true than not, it is considered clear and convincing evidence and is admissible in cases such as ‘pulling the plug’ on life support and personal injury cases. 

Beyond reasonable doubt is the most commonly known way to secure proof. This literally means that there is no reasonable person who would doubt what has been offered as proof. By saying this phrase, you are securing your proof as fact by 99%.

Facts that can be scientifically proven are the best way to alleviate the burden of proof. It boils down to that the odds are with the defendant to win the case without proof.  If you’ve ever played the game of RISK, it is similar to the rules for attacking and who gets the benefit. The strategy of the prosecutor should be worth more than the assumed innocence of the defendant for the plaintiff to win a case.

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The Fourteenth Amendment calls for Due Process

The Fourteenth Amendment grants us protection, declaring that the state shall not “deprive any person of life, liberty, or property, without due process of law.” Basically it is saying that decisions cannot be made for you by the government without going through a procedure first. There are variables from state to state so due process laws generally adhere to local governments. 


“…life, liberty or property…”

Procedural Due Process refers to the steps that must be taken by the government to correct a deprivation of life, liberty or property. If a state decides to make an appliance illegal, it must be reviewed. If a state decides to take something away from you, it needs to be determined as a right or a privilege. If you are asked to pay more money in tolls, it is infringing on your property, therefore covered by the fourteenth amendment to undergo substantive due process analysis.


“…due process of law…”

Substantive due process analysis begins by breaking down your rights into two groups; fundamental and non-fundamental rights. Your fundamental rights include the right to vote, freedom of religion, freedom to travel etc. Your non-fundamental rights are mostly to do with economic and social areas of the government. These rights span from loitering to the right to physician assisted suicide. Different levels of scrutiny are used in substantive due process to determine if the fourteenth amendment is being upheld.



“…nor deny to any person within its jurisdiction the equal protection of the laws…”

The equal protection clause covers a lot of ground even though it seems trivial to some. Firstly, it reinstates that which much of our government is based around, the belief that all men are created equal. The other importance of the clause is that it extended the protection from just federal to cover state and local matters as well. This protection did not always extend to people of all races but the fourteenth amendment helped solidify equality in the justice system.

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These Are Your Miranda Rights

Being arrested is a confusing chaotic moment for the suspect. It is the officer that has the advantage of systematic procedure practiced again and again. Often times, when you are arrested, you will hear these words:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

These are your Miranda rights.

The right to remain silent

Were the rights read?

A common question of the defense is if the arrestee remembers his or her rights being read. The police do not have to read you your rights to arrest you. This is surprising to many people. In fact, they don’t have to until just before they interrogate you. If they question you without your rights being read, anything you say is inadmissible in court, including any evidence discovered from that information. The other exceptions to this are in the case that public safety is compromised or there is need for a translator.


Don’t be coerced.

The advantage of officer over suspect requires protection for the weaker party. There are a few ways of getting information that are not allowed to be used. One of the words used in the bylaws of the Miranda rights is ‘voluntary’. Coercion is considered involuntary. An officer is not allowed to physically or psychologically coerce any information out of a suspect. Another way you may be coerced is from false promises or threats made by the agent in return for information. If coercion is proven, the information gained from that questioning is thrown out. However, often times, there is no recording of this coercion and the judge will side with the law enforcement, as they have less of a reason to lie, in the eyes of the court.


You have the right to an attorney.

It is written in the Bill of Rights that unless you are deemed incompetent to waive that right, you are allowed to represent yourself. Waiving this right is not a successful move. Lawyers take a lot of time learning the legal system in depths that only daily research can achieve. For any legal matter, retaining an attorney is in your best interest.


If you cannot afford an attorney, one will be appointed for you.

Some criminals cannot afford an attorney to represent them. The courts understand there would not be much of a fair fight if your average Joe went up against a skilled lawyer in trial. The state will appoint a public defender to take on the case. They are paid by the state to be knowledgeable and steadfastly represent to the best of their ability. This right was only true for federal cases until the famous Gideon v. Wainwright case of 1963 which broadened the meaning to include state cases as well. The state of Maine has their own system for public defenders, such as Attorney Smith.


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Understanding your Civil Rights

Learn your rights today

I remember my first criminal justice class in college. My teacher stood before the class on the first day and said “If you remember one thing in this program, remember Mr. Muska’s Law; Don’t say nothin’, don’t sign nothin’”. I found his improper use of the double negative as a blatant and memorable way to get his important point through our heads. If only everyone had someone to instruct them on what to do when stopped by an officer.


My teacher was referring to ‘The right to remain silent’ in the first line of the Miranda rights which are read when someone is arrested. But what happens in that grey area in between initial contact with the officer and arrest?


What if he asks me a question on the street? You might fit the description of a suspect and a police officer has every right to stop you. Just because you are questioned does not mean the police must read you your rights. He will use your reactions to make the decision to arrest you or not. If you are innocent, a good officer will recognize that but take note of your meeting. If you act guilty, through physical and verbal cues or by walking away, that is probable cause to take you in.


When should I say something? As is true of most things, Muska’s Law should not be taken literally 100% of the time. The exception to the rule is when an officer coolly asks you a simple question. Your silence can actually incriminate you at this point. This is because your Miranda rights have not been read yet and you have no reason excepting guilt to stay quiet.  Sometimes referred to as ‘pre-Miranda silence’, this gives the officer ‘reasonable suspicion’ and the right to put you in handcuffs.. Not a good thing.


What is the right thing to say? Performance anxiety with law enforcement? Just say “My lawyer has advised me not to say anything with out speaking with him first.” This answer is acceptable to officers and embraces your civil rights. Police officers are granted the right to use their discretion in situations like this so think smart and evaluate the situation before ‘copping’ an attitude.

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Class Crimes in Maine

If you receive a charge for a crime in Maine, it will fall into one of the 5 different classes. Class Crimes A-E spans the spectrum of offenses from murder to mischief. Class A, B and C crimes are considered felonies. Drug charges, different degrees of homicide and armed robbery are included as felonies. Classes D and E are considered misdemeanors. The hard and fast rule for determining which is which comes down to the jail time sentenced. If you are to be incarcerated for a year or more, it is considered a felony. If the charge demands anything less than a year, it is a misdemeanor. Note: The state of Maine does not have the language “felonies and misdemeanors” written in legislature but is commonly used to distinguish incidents further.  

downeastlawyers stephen smith


                Class E crimes are punishable by up to six months incarceration and a $1,000 fine. These types of convictions are the lowest on the crime and punishment scale. The types of offenses included in this category can include driving under a suspended license, petty theft (of where the value of the property is under $1,000), or disorderly conduct. This can also include drug possession on the smallest degree.

Class D crimes are punishable by up to 364 days incarceration and a $2,000 fine. Class Ds not only catalogue individual crimes such as certain reckless behavior and assaults, usually OUIs, but also levels of other offenses such as marijuana cultivation. For example, depending on how many plants you possess, you can receive either a class E, D or C. Class Ds can also be felonies in certain circumstances.


Class C crimes are punishable by up to 5 years incarceration and a $5,000 fine. These offenses can be fresh theft charge or small embezzlement but can also increase the charge of habitual crimes and repeat offenders. If the court sees that reform is not occurring, they may up the charge to implicate severity.

Class B crimes are punishable by up to ten years incarceration and a $20,000 fine. When you are convicted of a class B offense, you are in serious trouble. Sex crimes, OUI, personal injury, and high level drug trafficking can land you with this serious felony.

Class A crimes are punishable by up to 30 years incarceration and a $50,000 fine. As you can imagine, the most serious crimes are included in this classification. Murder, reckless manslaughter and gross sexual assault are common examples. Life sentences can be implied for certain cases but are closely related with the regulations of a class A crime.



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Accident and Personal Injury Manual Blog Series: A Final Thought

The purpose of this series was to show the standard procedure of accident and personal injury claims in this country. Most all personal injury matters settle at the demand stage. Generally speaking, of every five claims, three will settle before trial, one will be won and one lost. On occasion that the insurance company disputes damages, you have to file suit to either call their bluff or show them how serious you are. However, disputing is not in their best interest as they will ultimately be responsible for the attorney’s fee or they may lose and pay more than the original demand. Chances are, you will know when you are a victim. Personal Injury is a business, take precaution against becoming a customer on the wrong side of the counter.   Remember Stephen Smith at Smith Law Offices in the event of an accident or personal injury matter in Maine. 


Stephen Smith Law Offices in Bangor

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Accident and Personal Injury Manual Blog Series: Exhibits


Exhibits are articles offered to help prove a claim. Exhibits don’t become evidence until they are accepted during a trial. Since many personal injury cases settle before they get to a court room, most remain exhibits.

Maine's Best Personal Injury Lawyer

The common types of exhibits are:

  • Real Evidence. This includes objects which are easily understood and recognized by sight or touch. This is not common in personal injury cases because often times the only ‘real evidence’ is too big or destroyed to be encountered first hand.


  • Demonstrative Evidence. There are some exhibits that simply cannot be revisited or brought in. Photos, maps, charts, media or diagrams can give an accurate depiction of what happened. This is how proof such as vehicles, road way conditions or geography becomes reviewable in the months to come. *TIP* Keep a camera handy.


  • Records. Much of a personal injury settlement is based on the physical toll an incident has taken on a victim. Police and Medical records are a non-disputable way to prove what a victim has gone through as a result of another’s neglect. The Summary of Injuries, Crash Report, Medical Bills, Lost Wages and even Weather reports can all be used to prove what a victim deserves.


  • Writings. This type of exhibit is documented notes, contracts, agreements or promises which ARE admissible as evidence, where hearsay is not. Documenting something verbal that you take action on can literally win or lose a case.


Laying a good foundation for your exhibits is just as important as laying a foundation for a building. A weak foundation for a good exhibit is equal to a weak exhibit. Great attorneys understand the importance of detail for a positive outcome.

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