Michael M. O’Hear – Page 11 – Marquette University Law School Faculty Blog

Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

Post author:Michael M. O'Hear
Post published:June 26, 2015
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.

Elonis v. United States: SCOTUS Again Adopts Narrowing Construction of Criminal Statute

Post author:Michael M. O'Hear
Post published:June 3, 2015
Post category:Criminal Law & Process Federal Criminal Law & Process Judges & Judicial Process Public U.S. Supreme Court

As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law. Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.

Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page. Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others. Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.

Yates v. United States: Overcoming Plain Meaning

Post author:Michael M. O'Hear
Post published:May 29, 2015
Post category:Criminal Law & Process Federal Criminal Law & Process Judges & Judicial Process Public U.S. Supreme Court

As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

On appeal, the question was simply whether a fish counted as a “tangible object.”