Federal Law & Legal System – Page 147 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Silence and Consent

Post author:Michael M. O'Hear
Post published:July 12, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

seventh-circuit2 In 2006, Jarrett James robbed the same bank in Middleton, Wisconsin, on two different occasions, getting away with about $120,000. He was later apprehended, convicted in federal court, and sentenced to 42 years in prison. His appeal centered on the government’s warrantless seizure of a safe from his mother’s home. The safe contained a gun matching a description of the weapon used in one of the robberies. When the government sought to use the gun as evidence against him at trial, James argued unsuccessfully that the gun should be suppressed because it was obtained in violation of his Fourth Amendment protection against unreasonable searches and seizures.

In United States v. James (No. 08-3327), the Seventh Circuit (per Judge Flaum) also rejected the Fourth Amendment claim and affirmed James’ conviction. Specifically, the court held that the seizure complied with the Fourth Amendment because James’ mother consented to a police officer taking the safe. The holding is notable because James’ mother never expressly agreed to the seizure; the case thus illustrates circumstances in which Fourth Amendment consent may be inferred from silence. The case also raises interesting questions regarding the mother’s motivations and the underlying parent-child dynamics.

Confrontation and Criminal Trials: What’s Actually in Play

Post author:Daniel D. Blinka
Post published:July 6, 2009
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

The long-awaited Supreme Court decision in Melendez-Diaz v. Massachusetts finally came down on June 25, 2009. See my prior post here. Neither the majority opinion nor the dissent yield many clues about what took so long (this was the last case from the Court’s November sitting), and on the surface at least there is little that is portentous. Yet the case is ultimately about far more than hearsay evidence in criminal trials. It reveals significant discord about the nature of the modern adversary trial as well as skepticism over the use of science in the courtroom.

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test. The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination.

Anatomy of an Op Ed

Post author:Edward A. Fallone
Post published:July 4, 2009
Post category:Legal Writing Media & Journalism Political Processes & Rhetoric U.S. Supreme Court

I authored an opinion piece in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that was published in the June 28, 2009 edition of the Milwaukee Journal Sentinel. You can read the piece here (and you can read a “dueling” piece authored by Rick Esenberg here).

What follows is a deconstruction of my own op ed piece. The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric. Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.

Believe in Your Argument: It is not necessary to have an angel for a client, but it helps. The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker. My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well. If I do not believe my own argument, I will not succeed in convincing the reader.

Know Your Audience: My language is directed towards the non-specialist, so I consciously avoided legal technicalities. Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments. Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.