Criminal Law & Process – 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.”

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.

Federalism and Criminal Law

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Criminal Law & Process Federal Sentencing Federalism U.S. Supreme Court

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

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems? But federalism issues can also appear in criminal cases that originate in federal court. In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute. (I have posted several times about ACCA in the past year, most recently here.) Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury. For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes. Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law. (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.)