Monthly Archives: November 2016

Consent

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Johnny was trying really hard to follow the rules of the road, but when he glanced in his rearview mirror, his stomach clenched. Flashing red and blue lights. Shit.

He pulled to the side of the highway, rolled down his window, and cut the engine. And when the cop walked to his window, Johnny even managed a shaky smile. “Good evening, officer.”

The cop didn’t smile back. “License, registration, insurance.”

Johnny handed over the documents and watched as the cop inspected them. Then the officer grunted softly and handed them back. “Everything looks in order. But you were following that other car pretty closely. It’s important to maintain a safe stopping distance. I could cite you for that.”

“Uh…. Sorry?”

“All right. I’ll let it go this time. But be more careful.”

Johnny’s lungs loosened enough for him to breathe. “Thanks, officer. I appreciate it. I’ll definitely be more careful.”

“Good.” The cop started to step away, then stopped and turned back to the window. “You don’t mind if I take a look in your trunk, do you?”

Trying not to choke, Johnny clearly pictured the ten pounds of methamphetamine currently sitting in the trunk. “Uh….”

So what can Johnny do?

Let’s begin by establishing one important thing: unless there are additional circumstances I haven’t mentioned in that scenario, the cop doesn’t have legal authority to search the trunk without consent. The Supreme Court has held that search warrants are virtually never needed for automobile searches, but law enforcement still generally needs probable cause to believe that the vehicle contains evidence or contraband. The fact that Johnny was following another car too closely doesn’t tell us anything about what may be in his vehicle; it certainly doesn’t give the cop probable cause.

So if the cop can’t force a search, is he out of luck? Nope. He can still ask Johnny for permission to look. That’s called a consent search, and police can ask for them any time they want to. But because it is a consent search, Johnny can refuse. His refusal alone won’t be enough to establish probable cause for the search. So if Johnny says no, the cop needs to let him continue on his journey. Lucky Johnny!

But here’s the rub—the cop doesn’t need to tell Johnny he has the right to refuse. This differentiates searches from interrogations, where the Miranda decision holds that suspects do have to be informed of their rights. Most people don’t know these details, and police often strongly hint that the subject needs to comply.

This tactic works well. Police find drugs via consent searches all the time, as in this recent example. Or this one. Why on Earth would someone with $3 million worth of meth in the trunk allow police to search his car? Because he thinks he has no choice.

One other twist on this situation. After the initial traffic stop, something might raise the officer’s suspicions that something is going on. Maybe the driver appears unduly nervous. If the cop has reasonable suspicion (which is less than probable cause) that the car contains something it shouldn’t, he can briefly extend the detention. This can last long enough to bring in a drug-sniffing dog and allow the dog to smell the car’s the exterior. If the dog alerts, that gives enough evidence to constitute probable cause, and now police can conduct a full search.

As for Johnny? I’d advise him to just say no.

 

Telling the truth about verdicts

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George fidgeted in his chair while he waited for the jury to return to the courtroom. His lawyer claimed to be optimistic, but still George worried. If he was convicted, he was looking at a hard stint in prison. He crossed his fingers and prayed silently: Please, God, let them find me innocent.

Ah, poor George. He may or may not escape prison, but his prayer is not going to be answered.

A jury decision is called a verdict. The word comes from Latin by way of French, from roots meaning “true speech.” In the United States, criminal verdicts are most often determined by  jury, although occasionally both sides waive the jury, in which case the judge determines the verdict instead (this is called a bench trial).

In our system, only two verdicts are possible.

  • Guilty: This means the jury finds that the prosecutor proved every element of the crime beyond a reasonable doubt.
  • Not guilty: This means the jury finds that the prosecutor failed to prove every element of the crime beyond a reasonable doubt.

That’s it. You’ll note that “innocent” is not an available verdict—ever.

A not-guilty verdict might indicate a number of things. For example, it might mean that the jury is fairly sure that the defendant did it, but they still possess some reasonable doubts. It might mean that the prosecutor proved almost everything but left out something key. Or it might mean that the jury truly believes the defendant is innocent. From a legal perspective, it doesn’t matter; in any of those cases, the result is the same. George is acquitted and goes home.

While the law doesn’t care about the difference between not guilty and innocent, George might. Records of his arrest and trial might still affect his life in various ways, even if he was ultimately acquitted. In some jurisdictions, he can file a factual innocence motion asking the court to enter a finding that he really is innocent. A hearing will be held, during which George (or his lawyer) can present evidence. If the judge finds in George’s favor, his arrest records will be sealed and eventually destroyed. Few defendants go this route, however.

Incidentally, once a not-guilty verdict has been entered, the defendant can never, ever be retried for that particular crime in that jurisdiction, no matter how much wonderful evidence shows up later on. That’s because of the double jeopardy clause, which I blogged about earlier.

 

Pleas, please

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Let’s begin with a bit of etymology ’cause that’s the way we roll. “Plea” and “please” come from the same Latin root, placere, meaning “to please.” Plea made its way into English via French, and by medieval times, plea meant “lawsuit.” The English had a complicated judicial system that included the Court of Common Pleas as well as the Exchequer of Pleas, and US states such as Pennsylvania and Ohio still have common pleas courts.

But eventually plea took on another meaning as well: a formal answer to criminal charges. That’s the kind of plea we’re discussing today.

The typical procedure in the US is for a defendant to enter a plea at some point during the legal proceedings. The precise point is going to depend on the jurisdiction and the severity of the charges. Whenever it occurs, the defendant has two (or possibly three) options:

  • Guilty: This plea means the defendant admits to the charges. No trial is necessary. In practice, a guilty plea often occurs as a result of plea bargaining, during which the prosecutor agrees to reduce the initial charges and the defendant agrees to plead guilty to those reduced charges.
  • Not guilty: This means the defendant denies part or all of the charges. Unless he changes his mind, a plea agreement is reached, or the prosecutor drops the charges, the case will go to trial.
  • Nolo contendere: Also called no contest. This means the defendant does not admit to the charges–but she doesn’t deny them either. Why would this happen? Usually it’s the result of a plea bargain. The defendant’s still going to be punished the same as if she had pled guilty. The advantage from her standpoint is that a nolo contendere plea can’t usually be used as evidence against the defendant in any related civil lawsuits (but a guilty plea or a conviction can). Not all jurisdictions allow this plea.
Peine forte et dure.

Peine forte et dure.

At common law (i.e., in Merrie Olde England), a trial could not proceed until the defendant entered a plea. As you might imagine, this could cause problems when stubborn defendants kept their mouths shut. In those cases, English law allowed something called peine forte et dure (forceful and hard punishment) or, in English, pressing. The defendant would be tied down, a board would be put on him, and then weights or stones would be piled on the board until he either entered a plea—guilty or not guilty—or died. If he entered a plea, the weights would be removed and he’d go to trial. Some defendants chose to die instead. Why? Because if they went to trial, the consequences could be terrible for their family, including torture or forfeiture of property. But if the defendant was pressed to death, his family remained unscathed and got to keep his estate.

The English abolished pressing in the 18th century, as did Colonial America. Today, if someone stands mute (refuses to enter a plea), the court will automatically enter a plea of not guilty for them.

If a defendant enters a not-guilty plea, he can change it later on. This happens all the time during plea bargaining, and it’s strongly encouraged because it reduces costs and court backlogs. On the other hand, it’s much harder for a defendant to withdraw a guilty plea. It has to be allowed by the judge, who will do so only under certain circumstances, such as a strong proof that the defendant is actually innocent or evidence that the defendant didn’t understand what was happening.

The good news is that, no matter what, today’s defendants won’t be squished under weights.

Incidentally, just as defendants are limited in what pleas they can enter, juries are limited in what verdicts they can decide. Juries have only two options: guilty or not guilty. I’ll discuss that in a later post.

 

 

The sequestration question

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Betsy settled comfortably into her juror chair and listened to the prosecutor drone on. Some of the other jurors looked unhappy when they learned that this case would last at least two weeks, but not Betsy. She was looking forward to being sequestered. Free nights at a hotel, free meals, an excuse to spend a couple of weeks away from her obnoxious roommates—that sounded like a paid vacation to her. This was going to be fun.

Poor Betsy is in for some bitter disappointment.

To sequester a jury means to isolate jurors during the course of  trial. The purpose of sequestration is to insulate jurors from exposure to outside information about the case. It can happen when a case is receiving a lot of media attention, and when the judge (and attorneys) want to make sure jurors don’t hear anything except what’s presented in court and don’t discuss it with anyone else.

Sequestered jurors spend their days in the courtroom and their nights in a hotel. They’re permitted to speak only with each other and selected court personnel. They’re denied access to TV, the Internet, and other media. They may be allowed a phone call home—or visitors, if the case is long—but court personnel will supervise and monitor. They might also be allowed some entertainment, such as outings or carefully screened movies, but the jurors will be watched every minute.

As you might guess, sequestration can quickly become unpleasant. How long is Betsy going to be happy without her smartphone? No Netflix. No hanging out with friends. No private time with family. No sex! While this might be fine for a night or two, cases can drag on. The jurors in O.J. Simpson’s case were sequestered for 265 days!

The truth is that juries are very rarely sequestered. This is partly due to the extreme inconvenience to the jurors. Those who face isolation for long periods may drop out of the case, which would require the use of alternate jurors and could endanger the case. It’s also expensive. The government ends up paying for all the costs—room, board, and entertainment for jurors, as well as salaries for the court personnel (usually cops) who supervise them.

Forcing a group of people into such close and exclusive association is also problematic. Jurors may become such close friends that it’s difficult for them to deliberate independently regarding the defendant’s guilt. Jurors may even fall in love, which makes for a lovely plot bunny but endangers the integrity of the trial.

In the vast majority of cases that last more than one day, jurors are simply sent home with the warning not to talk about the case with anyone and not to read or watch anything about the trial. There’s no way of knowing how well they listen.

As for Betsy, she’s going to be disappointed either way. Most likely, she’s going home to her roommates tonight. In the event she is sequestered, she’s probably not going to enjoy it much.

You can read more about sequestration here.

 

 

 

When rights aren’t rights

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Shaun was just about to clock out after a long day at work when Marge, his asshole manager, pounced on him. “Inspection time!” she sang as she shoved a small plastic cup into his hand.

He frowned at it. “What’s this?”

“Collection container, of course. Go pee in it. And while you’re doing that, I’ll be going through the contents of your locker. Hope you don’t have any drugs in you or on you!”

Shaun never used drugs. But his locker contained his backpack, and his backpack contained a set of rather, well, private photos his girlfriend had given him that morning. He’d been looking forward to examining the photos closely after he got home from work.

Marge grinned as if today was the most wonderful day of her life.

“You can’t do this to me!” Shaun said. “It’s unconstitutional!”

Is Shaun right? Or is he going to have to pee in a cup and let Marge paw through his personal property if he wants to keep his job?

Let’s begin by clarifying which part of the US Constitution is in question—the 4th Amendment, which says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It looks as if Shaun’s got a good point, right? Marge’s behavior appears to be an unreasonable search, and she certainly didn’t have a warrant based upon probable cause.

But there’s a problem: the 4th Amendment (and the rest of the Bill of Rights) limits only the actions of the government. It does not apply at all to individuals or organizations that aren’t a part of or agents of the government.

When it was originally written in the 18th century, the Bill of Rights applied only to the federal government and not to the states. But that changed by the 20th century, when the US Supreme Court held that the “due process” language of the 14th Amendment—which does specifically include states—should be interpreted to mean that much of the Bill of Rights now applies to states as well. This is called the Incorporation Doctrine. It’s an interesting legal trick, made even more intriguing by the fact that SCOTUS (the Supreme Court of the US) has refused to incorporate the Bill of Rights in its entirety. Bits and pieces of the Bill of Rights have never been incorporated and do not apply to states. The most notable of these excluded bits, perhaps, is the right to a grand jury.

But the entire 4th Amendment has been incorporated, which means state (and local) governments as well as the federal government must abide by its rules.

What this means for Shaun is that if he and Marge are federal employees, he’s probably correct in his assertion of a constitutional violation. Ditto if he and Marge work for any state or local governmental agency, including public schools. But if they work for a private company, Shaun is out of luck—the 4th Amendment has no bearing at all in that case.

I’ve focused here on the 4th Amendment, but it’s important to note that the general principles apply to the rest of the Constitution as well. Unless an action is taken by a government agent acting within the scope of her employment (i.e., as part of her job), the Constitutional rights are irrelevant.