“Speak Now or Forever Hold Your Peace”: Appellate Advocacy Basics in the World of Criminal Procedure

State v. Hillard, No. 122,163, (Kan. June. 10, 2022).

Issue:  Did law enforcement violate Hillard’s constitutional rights when they failed to hold a hearing before sending his cell phone to a third-party corporation to be unlocked?

Answer:  No, but perhaps only because Hillard (1) failed to provide any authority to establish his point and (2) failed to explain why his argument was meritorious despite the lack of supporting authority. Accordingly, those failures amounted to a waiver of Hilliard’s argument on appeal.

Facts:  Hillard was charged with several crimes in connection with the sale of methamphetamine.  In an attempt to prove Hillard’s guilt, law enforcement obtained a warrant that allowed a third-party corporation, Cellebrite, to receive Hillard’s cell phone for unlocking purposes.  Another warrant allowed law enforcement to search Hillard’s cell phone after Cellebrite unlocked it.  Three audio recordings were found as a result of that search and later admitted at trial.  At trial, the jury found Hillard guilty on multiple counts and sentenced him to life without the possibility of parole for 50 years.  On appeal, Hillard argued that law enforcement violated his rights under the Fifth and Sixth Amendments when they sent his cell phone to a third-party corporation without first holding a hearing.

Discussion:  Generally, the Fifth Amendment states the government shall not deprive any person “of life, liberty, or property, without due process,” while the Sixth Amendment states all criminal defendants shall “enjoy the right . . . to be confronted with the witness against him.”  Although Hillard raised his Fifth or Sixth Amendments claims on appeal, the arguments were waived.  Hillard failed to provide any legal authority that the Fifth or Sixth Amendments required law enforcement to first hold a hearing before coordinating with a third party during the investigation.  Moreover, Hillard failed to “explain why his argument [was] meritorious despite a lack of supporting authority.”  As held in State v. Salary, a party’s failure to cite authority or explain why authority is unnecessary amounts to “a failure to adequately brief the issue.”  Consequently, Hillard’s constitutional claims were waived and abandoned. 

Key Authorities:  U.S. Const. amend. V (forbidding the government from depriving any person “of life, liberty, or property, without due process”); U.S. Const. amend VI (requiring, in relevant part, that all criminal defendants “enjoy the right . . . to be confronted with the witness against him”); State v. Salary, 437 P.3d 953, 957 (Kan. 2019) (holding that a party’s failure to support an argument with authority or show why it prevails notwithstanding a lack of supporting authority constitutes a failure to brief an issue).