Federal Law & Legal System – Page 105 – Marquette University Law School Faculty Blog

The New Miranda Warning

Post author:Michael Cicchini
Post published:November 8, 2010
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

I never thought the Miranda warning was all that useful. In fact, it actually raises more questions than it answers. For example, the warning tells a suspect that anything he says can be used against him in court. But asking for an attorney is saying something, isn’t it? Could the prosecutor later use such a request against him? (After all, television teaches us that only guilty people “lawyer-up.”) And what if the suspect wants to remain silent? Could his silence be used against him in court? The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

Seventh Circuit Backs Away From Apparent Circuit Split on Three Strikes Provision of PLRA

Post author:Michael M. O'Hear
Post published:November 6, 2010
Post category:Prisoner Rights Seventh Circuit

Enacted in 1996, the Prison Litigation Reform Act raised numerous obstacles to prisoner rights lawsuits. The “three strikes” provision of the statute, codified at 28 U.S.C. § 1915(g), is intended to bar prisoners who have a history of frivolous litigation from proceeding in forma pauperis. IFP status results in the waiver of court filing fees that would otherwise be beyond that means of indigent litigants. For most prisoners, in light of their limited financial resources, a denial of IFP status is the functional equivalent of a denial of access to the courts.

Last week, in Turley v. Gaetz (No. 09-3847), the Seventh Circuit backed away from dicta in earlier decisions that seemed to embrace an exceptionally and unnecessarily broad reading of the three strikes bar. Had the court adhered to the earlier dicta, it would have opened a circuit split on a very important prisoner rights issue.

Here’s what happened.

What’s the Difference Between Grimm’s Fairy Tales and Postal 2?

Post author:Judith G. McMullen
Post published:November 3, 2010
Post category:First Amendment U.S. Supreme Court

The question about the difference between Grimm’s Fairy Tales and Postal 2 sounds like the set-up to a corny joke. In fact, it was a subject discussed yesterday at the U.S. Supreme Court, where the justices heard oral argument on a first Amendment challenge to a California statute banning the sale of violent video games to minors. The New York Times reports on a spirited question and answer exchange between the justices and attorneys for each side in the dispute.

According to the report, the law imposes a $1,000 fine for selling violent video games to anyone under the age of 18. Violent video games are defined as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive way,” or a way that appeals to “deviant or morbid interests” while lacking “serious literary, artistic, political or scientific value.”

Justice Scalia’s comments and questions made it seem like he is leaning against the law, since he pointedly questioned both the definition of a “deviant violent video game,” and queried whether, since Grimm’s Fairy Tales are indeed grim, whether they, too should be banned.