Michael M. O’Hear – Page 121 – Marquette University Law School Faculty Blog

Two Views of Constitutional Rights: Anti-Badgering Versus Informed Consent

Post author:Michael M. O'Hear
Post published:December 1, 2009
Post category:Criminal Law & Process U.S. Supreme Court

This is the fifth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

You can tell there are no Wisconsinites currently on the Supreme Court — otherwise, the Justices would not treat “badger” as such a bad word. In an earlier post, I discussed the Court’s marked left-right divide last term in its cases dealing with police investigation practices. To my mind, the most interesting of these cases was Montejo v. Louisiana, 129 S. Ct. 2079 (2009), which nicely exemplifies the competing views of defendants’ rights on the Court.

In Montejo, the Court substantially weakened the Sixth Amendment right to counsel by overturning Michigan v. Jackson, 475 U.S. 625 (1986). Jackson had prohibited police from initiating the interrogation of a criminal defendant once the defendant had requested counsel at an arraignment.

Why did the Court think Jackson unnecessary? The answer lies in the Court’s concern with “badgering.”

Welcome, December Bloggers

Post author:Michael M. O'Hear
Post published:December 1, 2009
Post category:Uncategorized

christmas-tree-183x300 Many thanks to our featured bloggers in November, Professor Lisa Laplante and David Strifling ’04. The featured bloggers for December are Professor David Papke and Stephen Boyett ’09.

Seventh Circuit Criminal Case of the Week: More on Other Bad Acts Evidence

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Criminal Law & Process Evidence Federal Criminal Law & Process Seventh Circuit

seventh-circuit5 The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground. In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession. The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him. Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases. As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases. Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.