Category: Criminal Procedure


Improper Closing Arguments During Criminal Trials

There has been an interesting discussion this week in the blogosphere about whether it’s appropriate for a prosecutor to urge the jury during closing argument to “send a message” with its verdict. See, for example, this discussion at the Volokh Conspiracy: I worked as a prosecutor in Washington, D.C., where such arguments were clearly impermissible. Being careful not to make a misstep during closing argument weighed very heavily on the minds of the attorneys in my office because the appellate court in DC kept very tight reins on prosecutors. Perhaps the most striking example was that you could not say a defense witness lied during closing argument. You could say the testimony was incredible in light of the other evidence in the case, or inconsistent with the testimony of other witnesses, but we were warned in no uncertain terms not to use the word “lie” in closing argument. In keeping with the prohibition that you could not tell the jurors to send a message, you also could not tell jurors they were the “conscience of the community.” Of course, prosecutors have made some pretty remarkable statements in closing arguments over the years. Some of my personal favorites are (1) the prosecutor who stated about a witness “I believe him from the bottom; I swear I believe him from the bottom” and (2) the one who told the jury he “did not go to law school to put innocent men in the penitentiary.” Comparing a defendant to Charles Manson is not surprisingly no good either. Anyone else have any particularly striking examples?


A Breathalyzer In Every Car

Should I be very pleased that some people are working hard to insure that every car contains a breathalyzer that will prevent drunks from driving? This, from the NY Times:

Officials say interlocks for first offenders are not a panacea but will reduce repeat offenses. They say the next step will be a program to develop devices to unobtrusively test every driver for alcohol and disable the vehicle. The automaker Saab and a medical equipment company already have devices that may be adapted for that job.

On one hand, this approach is sensible. Assuming the devices are effective (that is, can’t be circumvented and don’t incorrectly exclude non-drunks), why wouldn’t we want to keep intoxicated people off the road? The reality is that police-enforced drunk driving laws don’t work very well. Relatively few drunk drivers are caught – except after an accident. Automated breath tests can not only save lives; they can prevent people from getting criminal records.

On the other hand,something about this technology makes me nervous. I concede that this might be irrationality – the product of too many years in criminal defense. One possible downside is that malfunctioning machines might block legit drivers from using their cars. Another is that it will prevent people from driving in a few situations where we would prefer that a (slightly) drunk person drive. Imagine that a person with .12 blood alcohol content is in his farm house with his wife. If she has a medical crisis, it will take an ambulance 30 minutes to get there, and another 30 minutes to get to the hospital. The husband can get her to the hospital in 30 minutes total. Assuming the risk of an accident at .12 BAC isn’t too high – and I suspect that, empirically, the risk is rather small – don’t we want our farmer to drive? Of course, this sort of situation is likely to be pretty rare.

I also worry a bit about the slippery slope. Will police seek to monitor these breath tests to catch people who even attempt to drive drunk?

Try as I might, however, I can’t convince myself that these devices are bad news. I like any invention that reduces the number of criminals, and the costs of crime, without filling up our prisons.

UPDATE: On a related note, Elizabeth Joh has an interesting piece considering some technologies that might reduce the role of police discretion in traffic stops.


How Many Bites of the Apple?

A prosecutor friend of mine recently set a fifth trial date in a homicide case where the jury has been unable to reach a verdict in the previous trials. When I was prosecuting, I was asked to handle the fourth retrial of another case where previous juries were similarly unable to reach a verdict. (Once again, the jury was unable to reach a verdict and we decided not to try the case a fifth time). Just two weeks ago, the government announced it would not retry reputed mobster John “Junior” Gotti after three attempts all resulted in hung juries. How many tries should the government get to convict a defendant? It seems to me that the vote counts in the previous trials should be one of the most important factors — if the jury is hanging 11-1 for acquittal every time, that is a case that pretty clearly needs to be brought to a close. The nature of the criminal charges seems to be another — the government would no doubt be more willing to continue to try to obtain a conviction in a particularly gruesome murder case than in a shoplifting case. Is anyone aware of any jurisdictions with firm rules on the issue?


Prosecutorial Practices and the Duke Lacrosse Case

First, I would like to thank Dan and all the folks at Concurring Opinions for inviting me to spend some time here. I thought I would dive right into a controversial topic to get things started off and post a few thoughts on the Duke lacrosse case. I obviously have no idea what really happened in the house that night, but it has been a fascinating case to observe from a procedural standpoint as a former violent crimes prosecutor. A couple of developments in the past week have been particularly interesting. First, DA Nifong stated that neither he nor anyone in his office has interviewed the alleged victim about the night in question. I frankly find that remarkable, especially in a case so dependent on victim testimony. When I was prosecuting we would have interviewed the victim early and often, both to help establish the facts and to develop additional avenues of investigation. This issue leads to my second and related point, which is that I think this case is an example of how the much maligned grand jury can actually serve an incredibly valuable function. We used grand juries extensively when investigating violent crimes in Washington, D.C. If I had been handling this case, for example, I certainly would have had every non-charged player who was at the party testify before the grand jury, as well as the second dancer who was at the house that night. Bringing as many witnesses before the grand jury as possible both helps to eliminate surprises like the second dancer’s statements to Good Morning America this week and offers the prosecutor invaluable insights from grand jurors about witness credibility, holes in the government’s case, and the like. It will be very interesting to see if this case leads to any evolution in prosecutorial practices in North Carolina in the future.


NSA Surveillance and the First Amendment

NSA3.jpgEarlier today, a federal district judge struck down the Bush Administration’s NSA surveillance program which involved intercepting international electronic communications without a warrant. The opinion is available here. I have not had time to read the opinion carefully yet, but I am especially intrigued by the court’s use of the First Amendment as one of the grounds to invalidate the program. I just completed an article entitled The First Amendment as Criminal Procedure in which I argue for First Amendment regulation of government information gathering. In the final section, I have a discussion of the NSA surveillance program.

The court’s First Amendment analysis is very brief, and I agree with Jack Balkin who observes that the “first amendment holding is novel although plausible, but it is not supported by very good arguments.” The First Amendment argument is indeed a difficult and complex one and it deserves more than just a few pages to develop. My article attempts to flesh out the First Amendment argument. Here’s the abstract:

This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people’s private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

I welcome any comments. Eugene Volokh has some interesting analysis of the court’s First Amendment analysis here.


Street Level Bureaucrats And The Revival Of Rehabilitation

OK, it is self-promotion, but since my article (co-written with Austin Smith) is now officially out in volume 91 of the Iowa Law Review I’ll take the chance to flog it here. The New Rehabilitation, available for free! free! free! in an earlier version from SSRN, challenges the received wisdom that rehabilitation is dead in American criminal justice. It also challenges the underlying assumption of most commentators that punishment policy is created from the top down – prinicipally by legislators. Pointing to the rise of specialty juvenile tribunals – like drug and mental health courts – it argues that street level bureaucrats (to use the language of political scientist Michael Lipsky) actually have a substantial role in shaping punishment policy. These local officials – judges, DA’s, probation officers, and others – crafted local courts that manage to avoid, or subvert, legisliative efforts to convert juvenile justice to a more punitive model. This new rehabilition isn’t available to all defendants, however. The specialty courts cream the less worrisome defendants and redirect them to alternative procedures while relegating the tougher kids to harsher juvenile or adult processes. I hear that this issue of the Iowa Law Review includes a limited edition Fountains of Wayne CD, but haven’t yet received confirmation.


Is Any Privacy Left in the Workplace?

computer14.JPGRecently, in United States v. Ziegler, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that under the Fourth Amendment, a private sector employee has no reasonable expectation of privacy in his computer if the employer’s computer administrator has access to that computer.

Orin Kerr has a lengthy and insightful analysis here. He contends that there is a difference between the expectations of privacy between government and private sector employees: “[T]he Court makes its (unpersuasive) analogy to a decision that rested on the framework of government employee rights, apparently applying the low-protection government framework to what used to be the higher-protection private-sector framework. The end-result: the relatively high level of protection that private sector employees have in their computer hard drives are dropped to the low level of protection that government employees have. Not good.”

Orin bases his argument that the Ziegler decision is problematic on the ground that private sector employees enjoy greater Fourth Amendment protections than public sector employees.

The problem I see in Ziegler is that it employs a very silly notion of reasonable expectation of privacy that contravenes the Supreme Court’s holding in O’Connor v. Ortega, perhaps the leading opinion on the issue of workplace Fourth Amendment rights.

In O’Connor, the Court held:

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Hiding Behind The Fourth Amendment

As I mentioned in an earlier post, a Birmingham suburb is considering an ordinance that criminalizes possessing a house in which an “open house party” occurs. An open house party occurs whenever two or more underage people consume alcohol in the home. As a consequence, any time parents allow their two kids to have wine at dinner they’re hosting an illegal house party. Mountain Brook’s police chief suggests that this won’t be a problem because the police can’t enter the house without some suspicion of misconduct and “no one really calls and says, `my mom lets my brother drink at dinner.'”

I’m not sure I like seeing the Fourth Amendment used in this fashion. It seems to me that a criminal law should be narrowly drawn to address the problem at hand. If we really think that it should be a crime for two or more underage kids to drink at home, regardless of the circumstances, we shouldn’t find excuses for why the law won’t be enforced at inopportune times. We should exclude those situations. And if we don’t exclude them, it seems to me that we want to find ways to stop those evil-doing parents who toast the new year with their underage issue.

While this law is minor, it’s relatively easy to see how hiding behind the Fourth Amendment becomes a way to encourage unnecessary lawmaking: the consequences of overbroad new laws are explained away as unlikely and irrelevant to selected citizens. At the same time, these provisions can be used, selectively, to generate a justification for entering homes that might otherwise be of interest to police. In my view, the only acts that should be crimes are those that a family in Mountain Brook – or Scarsdale or Winnetka or anywhere else – would be willing to forego in the privacy of their home. If the regulation seems to intrude too much on personal or family matters, it’s probably a bad law.


Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.


More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday’s Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury’s factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury – grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering – as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia’s move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can’t be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there’s nothing the Supreme Court can do about it.