I just finished reading 16 A and B on over-criminalization and I was wondering if you have addressed jury nullification before. Reddit is all hot about it and claims that a jury can find a defendant not-guilty if they think an act should be legal (even if it currently isn't). Could you address this hot-button issue? Thanks.
I’m really saving that for the section on Advanced Crim Pro — which I won’t be getting to until I do Constitutional Law first.
But in a nutshell, jury nullification is when the trial jury decides to acquit a defendant even though the government has proven its case beyond a reasonable doubt. The trial jury’s job at this point in history is really little more than deciding whether the government proved its case or not, so there’s an argument to be made that jury nullification is improper, if not unlawful.
However, it is an act of civil disobedience that has long roots in our system. In the colonies, it was used to prevent the punishment of those who sought independence. More recently, it has been used not so much to prevent individual injustices but systemic ones — I’ve had jurors tell me, for example, that they just didn’t want to see another young black man go to jail, no matter what he did. And now there has been talk of using it to protest unjust laws themselves.
But despite all the talk about it, jurors tend to do their job as properly as they can. And it is important to note that we require all 12 of the jurors to reach a decision together, which makes it really hard for one person’s moral qualms to override the process. Jury nullification is rare, as a result. Usually, the nullifying juror becomes an obstinate holdout who either causes a hung jury (making the victims and defendants and lawyers go through the whole thing all over again) or is eventually convinced to do his job like the rest of them. So concerns about the chaos, unpredictability and injustice of nullification are probably overblown.
Moreover, if all 12 really do go along with nullifying a charge, that powerfully tells you that either the law, or the way it is being enforced, does not reflect the mores of the relevant community. And the whole purpose of criminal law is to reflect just that — to punish those acts that are so bad that society says they’re deserving of punishment. So when nullification actually overcomes the systemic obstacles to its happening, one might argue that it’s a good thing for justice and for our faith in the justice system.
What people tend to overlook is that the Grand Jury is absolutely empowered to nullify. The GJ’s job isn’t to decide guilt or innocence, but whether you should be charged with a crime in the first place. So not only are they there to decide whether there’s enough evidence to support a charge, but also to act as the “conscience of the community.” In other words, to decide whether it’s really just and fair that THIS person be prosecuted for THIS offense.
Sadly, few grand jurors are ever told that they have this second role. They’re not really told this by judges, nor by the prosecutors who instruct them and present the evidence. If you want my opinion, people should be up in arms about that very real and systemic failing rather than any problems trial jury nullification may pose.
In Kastigar v. United States (1972), the Supreme Court held that the government must only provide a witness with use and derivative use immunity in order to compel him to testify. The state of New York grants transactional immunity to anyone who is compelled to offer testimony. Would this mean that if someone obtains income from an illegal activity and lists this income on their tax returns, as they are legally required to do (US v Sullivan) they are immune from prosecution for the criminal act?
You’re getting a little ahead of things here — the comic hasn’t gotten to Fifth Amendment issues yet (though that’s coming up next).
The short answer, though, is tax returns do not confer immunity, because they do not compel the filer to attest to his illegal activity. The filer can assert his Fifth Amendment rights and decline to enter the source of his income on the return. The amount of that income is not privileged, however, and must still be entered.
That’s how the case law is generally understood. Of course, this raises even more questions (e.g., what if the mere amount of income was the crucial piece of the puzzle, so that reporting it was tantamount to self-incrimination?). But such arcana are best left for another day.
Had a great time at NYCC this weekend. Thanks to all of you who stopped by just to say hi and chat about the comic. (And thanks from my publisher to all who came by to buy the book.)
It was neat on Sunday having a long line of people waiting to get their books autographed. Of course it was my kids’ book, not mine, but still…
And so long as I’m going on about my kids, their cosplay wasn’t too shabby, either:
The kids couldn’t move three feet without getting mobbed, and I’m told some Adventure Time artists came out to take their picture. The kids’ reaction? “This sucks, we’re never going to get to see anything.” Youth: Wasted on the young.
I don't know if this is too specific or anything, but I have a question on what kind of information a police officer is allowed to act on. For instance, if I were into using illegal recreational drugs, and I have a friend of a friend who's a cop, and he finds out through a friend that I use. Is the officer in this situation allowed to use this information to bust me? I don't really know anything about this sort of thing, but I am interested.
To make an arrest, a police officer needs “probable cause” to believe that someone has committed a crime. That means that, based on the information known to the officer, it’s more likely than not that a crime was committed, and this person did it.
So far, so good.
An officer doesn’t have to actually witness the offense to get probable cause. The evidence can come from witness statements, forensic analysis, and other indirect sources. (Some jurisdictions require an officer to witness the offense if it’s a very minor one, but let’s ignore that for this discussion.)
So your question is, if Person 1 tells a police officer that Person 2 has used illegal drugs in the past, would that be enough to give the officer probable cause to arrest Person 2?
To answer this, you’d want to know whether using those drugs is actually a crime in the first place. And you’d want to know how reliable Person 1 was, and how detailed the information was, and how recent the information was, and other stuff like that.
And even then it might be a bit of a stretch to say that Person 1’s allegations are enough to make an arrest now. It might be enough to start an investigation and gather more evidence on which to base probable cause… but to constitute probable cause itself? Seems kinda thin.
If the crime is one of possession, for example, the cop’s probably going to want to seize the drugs so it can be proven that what was possessed really was drugs. If the crime is one of ingestion (is that even a crime?) there might need to be a blood test or something to prove that what was ingested actually was drugs. And so on.
"That guy does drugs," on the other hand, doesn’t prove much of anything to my mind.
Have you heard about the Florida man using Stand Your Ground + the "Bush Doctrine" as a way to excuse a double homicide? Is the lawyer justified to try anything no matter how crazy or is this an incompetent/unethical lawyer?
I don’t know all the facts, of course, and I’m not a Florida lawyer, but from what I’ve read it seems to me like the defense doesn’t have a winning argument here. It’s not unethical to make a losing argument, and lawyers often feel obligated to make every conceivable argument rather than lose an issue for appeal, or in the hope that something sticks — but it might be better to preserve your credibility with the court by choosing those arguments that at least have a teeny bit of merit.
"Stand your ground" laws say that, if you’re lawfully where you are, and someone is then and there about to kill or severely injure you, then even if you could have gotten away safely you’re allowed to use deadly force to defend yourself.
The “Bush Doctrine” is an application in international law of a basic principle of self-defense: you don’t have to wait for the other guy to hit you first before you defend yourself from the coming blow.
From what I understand of the Woodward case, he felt intimidated by these people, but was not in any immediate danger. Nobody was coming at him. Nobody was presently any threat to him.
Instead, he snuck up on a group of people at a barbecue, crawling on his belly to avoid detection. Then he fired a mess of rounds at them, hitting three and killing two. I don’t know what kind of weapon he had, but if the reported numbers of rounds are accurate, then he must have stopped to reload a few times.
This was not self-defense, because he was not in any actual danger at the time. At best, he was defending against some imagined possible future attack that might never have come. I get that he felt terribly harassed, but that’s not the same thing as an actual imminent attack. A hypothetical future attack is not an imminent one.
It was not stand your ground, because first of all he probably wasn’t lawfully there but was trespassing with intent to commit murder; and second of all because he wasn’t reacting to an attack.
The “Bush Doctrine” is just silly to cite, when there are plenty of self-defense cases to cite involving striking the first blow. But even there, the whole point is you’re about to get hit, and you’re defending yourself by making sure that blow doesn’t land on you.
From what I read, it looks like nothing less than cold-blooded premeditated murder, perhaps under great stress from a history of harassment, but in no way justified by it. Very similar to the “battered wife” scenario in my comic, actually.
Just to make this long answer even longer, here are the playground rules I’ve drilled into my kids since they started school:
1. No matter how angry you get at someone, you’re not allowed to hit them.
2. If someone else is about to hurt you for real, first try to get away.
3. If you can’t get away, try to get a grownup to help you.
4. If you can’t get help, then I want you to hit first, I want you to hit hard, and you’re not allowed to stop hitting them until they can’t hit you any more. Let’s practice some moves.
Why do you have to specify that your comics don't imply an attorney-client relationship? Isn't that obvious? Have you run into problems with this in the past?
This started out as an offshoot of my law blog, which has a similar disclaimer. It’s pretty standard for lawyers to state that their legal information isn’t legal advice, and just because you read it that doesn’t make you a client.
We’re all stating the obvious when we do that. (And no amount of disclaimer would help if a lawyer actually did give legal advice.) I imagine every lawyer cringes a bit as he types one out. Nobody in their right mind needs to have this explained.
But not everyone is in their right mind, sadly. You hear stories about how every now and then someone didn’t quite get the concept, which can turn into an unpleasant situation. So lawyers hope their disclaimers deter some of those people — and it’s nice to have something in black and white to point out to them.
It hasn’t happened to me, though. Not yet, anyway.
Just an FYI, I've been having my teenager read through this and we've had some really great discussions about what our current laws are, the role of law in a civilized society, the limitations of those laws, and ways to make the laws better. The other day I 'caught' him writing a letter to our city council about a point of local law and it was actually really well written and grounded in rational arguments. Thank you for making this! Completely buying the book next payday :)
This is FANTASTIC!
(Sounds like your kid has a great parent, by the way.)
I just wanted to point out that there actually is a deterrent to police crossing the exclusionary rule line, it's just seldom applied. Title 18, Chapter 13, Sections 241 and 242 of the U.S. Code make it a crime for someone to violate rights under color of law. Some states have laws that say similar things as well.
Yeah… well… not quite.
18 USC 241 & 242 aren’t really about unlawful search and seizure or other stuff dealt with by the exclusionary rule. They’re about police seriously abusing their power. 241 is about conspiring to injure or threaten or intimidate someone, to hinder their civil rights or to retaliate against exercising their rights. 242 is about abusing their power to actually deprive someone of their civil rights.
And the abuse of power has to be really severe. We’re talking about intentionally making up false evidence, intentional false arrests, sexual assaults, and severely excessive force.
What’s being deterred isn’t merely violating the Fourth or Fifth Amendments, but actual criminal conduct. This goes beyond even a civil rights lawsuit. These are not charges that you could bring yourself. They’d have to be filed by a prosecutor.
For a non-federal example of how states deal with it, here’s a story about a Mississippi sheriff who just got indicted the other day for similar conduct.
That’s really my purpose here — to dispel all the crazy myths and misinformation that are so prevalent out there, and present the straight facts in a format that’s easy for any high school student or adult to understand.
Not that I want anyone to think they have to accept how things really are. Maybe we ought to do some things differently. I like to think I’m helping people at least make informed arguments one way or the other (and I’ll be honest: I get a real thrill whenever I see people link to the comic in their online debates).
And I love getting messages like this. Totally makes my day. Thanks again!
On 8/5 you remarked about the SOD news that hit major American media. You seem to be thoroughly defending their actions as lawful and necessary. I realize the scenarios you gave seem to make everything ok, but what about the people who are actually innocent? Does "the dark side" ever give bad or misleading info? Is it conceivable that someone doing a Google search after watching CSI could get a red flag with local law enforcement? Or is the system ok because our government is always perfect?
No, I wasn’t defending them at all. My point was, if you’re going to complain about it, then complain about it for the right reason. Everyone was on about “laundering evidence” and coverups, when that’s really not the problem.
The problem is what I mentioned in the final paragraphs — that law enforcement and intelligence are supposed to be separate. In fact, we’ve given our government broad powers to gather intelligence for national security precisely because they aren’t to be used for law enforcement purposes. And yet that is precisely what is being done.
To put it another way, spy stuff is kinda outside the whole Fourth Amendment thing, because it’s not being used to convict people of crimes. Except whoopsie, yeah, it kinda is, isn’t it?
Anyone who says our system is okay because the government is always perfect is a fool. The government is nothing more than a bunch of imperfect people. Many of whom are trying to do the right thing, but who are still imperfect.
The beauty of our system is that it isn’t utopian — it’s set up to recognize that people are imperfect, and so it has rules to minimize the harm imperfect people can do when given governmental powers.
But our system fails when those rules are weakened, subverted, or simply ignored. There’s a good argument to be made that the SOD exists to do just that.
2nd prize - An autographed copy of “The Illustrated Guide to Criminal Law”
3rd prize - Two autographed copies of “The Illustrated Guide to Criminal Law” An upcoming character will be named after you, immortalizing your moniker for all time.
Here’s all you have to do:
1. Make some fanart.
By definition, it has to include a character or scenario from the webcomic. But apart from that, it’s really up to you what you want to draw (or sculpt, or film… any kind of art is great).
2. Submit your art.
Send it as an attachment (or as a link) in an email, with the subject “IGL 2013 Fanart Contest” to me at email@example.com and make sure to include your name and contact information, of course.
The contest closes at 5 p.m. Eastern Time (EDT) on August 18, 2013. I will then choose the winners, based on whichever entries tickle my fancy the most. Winners will be announced on lawcomic.net soon afterwards, and everybody’s submissions will be posted there for all to see and admire.
* You can submit as many entries as you like, but each entry has to be in a separate email, and you can only win one prize.
* You are encouraged to post your art on Tumblr or deviantART or any other website you want.
* No “Rule 34” stuff. X-rated entries will be disqualified.
* Make sure the file you send is in a lossless format like PNG, with full color depth. You don’t want jpeg artifacts or software shortcuts hurting your chances.
* Entries must be your own original work. No copyright infringement. And don’t break any other laws, while you’re at it.
* In exchange for your chance to win, you are giving me all rights to your submission. In other words, it becomes my property, and I can do whatever I want with it. I can go scuba diving with it, or teach it to dance or sell it, it doesn’t matter. I only intend to post it here for all to see and admire, but this covers my ass.
* If there are fewer than ten entries by the end of the contest period, then I can either extend the contest period or cancel the contest entirely, at my discretion. This is not expected to be a problem.
* This contest is void where prohibited. You are not guaranteed anything just for submitting an entry. No purchase necessary. Entries are judged by me and at my sole discretion, and all decisions are final. Boilerplate boilerplate yadda yadda yadda.
* Oh yeah, Gmail won’t allow attachments larger than 25 MB, so make sure your file is smaller than that.
Hi Mr Burney, I follow your blog for most of my legal information stuff and I've been meaning to ask a question about the recent DEA post. You've touched on the use of this information to find legitimate evidence. What you haven't discussed is whether or the seizure of private information by NSA is in the spirit of the 4th, since this information gathering program is affecting everyone using a cellphone.
I’ve been saving the NSA stuff for an upcoming discussion. I’ve got a few more basics to cover first, but we’ll get there soon enough. It’s a fascinating area at the boundary between government powers and constitutional rights, and I hope to do it justice!
It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)
A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.
As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.
So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.
First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.
Second of all, the whole “evidence laundering” thing isn’t quite accurate.
When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.
And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”
So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.
The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.
But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”
So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.
It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.
Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.
Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.
I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.
But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.
If you’re gonna complain about it, at least complain for the right reason.
So we can all get behind that Ariel Castro is a terrible human being. And having plead guilty, we can probably all agree on the 512 counts of kidnapping, 446 counts of rape and 7 counts of sexual abuse. My question has to do with the 2 counts of aggravated murder for beating Michelle Knight in the stomach until she miscarried the rape-begotten fetus. How can it be murder if the fetus was not viable, and if it is murder then how is this not a precedent for abortion legislation? Can you explain?
State laws typically state that killing a fetus is murder, and then make an exception for abortions performed with the consent of the mother.
So it’s not murder in the case of a consensual abortion simply because the statute says so.
It’s not a precedent either way, because both cases are part of the same legislative scheme. Often the same statute.
We could spend a lot of time exploring whether the prohibition and its exception share a consistent underlying principle, and that would be a thoroughly intriguing discussion, but it’s not necessary to answer your question here. The legislature is free to define the elements of a crime however it sees fit (within the limits of what is constitutional). And here, the elements make an exception for consensual abortion, which is constitutional. That’s really all there is to it.
Hello. I read your post on the Zimmerman/Martin case with interest, but I am confused with one thing. I always thought that whenever there is a murder where legitimate defense is being claimed, then: - burder of proof for murder is entirely on the prosecution's shoulders, but; - burden of proof for raising the exception of legitimate defense is on the defendant's shoulders. Was it not the case here?
It’s not that the accused has the burden of proving he acted in self defense. The burden of proof is always on the prosecution in a criminal case.
The accused does have to assert such a defense, but once it’s asserted the burden is on the prosecution to disprove it beyond a reasonable doubt.
If someone has a warrant out for their arrest, what does that prevent them from doing? Accessing their bank accounts? Enrolling in colleges? If the crime in questions matters I was wondering about MIP and POM. Is there a time limit before they must turn themselves in, after which the police will come looking for them?
All an arrest warrant is, is authority given to the police to go arrest you. It isn’t a restriction on what you yourself are allowed to do.
When and whether the police go looking for you is entirely up to the police. Some departments have “warrant squads” whose entire purpose is to execute arrest warrants. Others get to it as time and resources permit. Often, a warrant can be out there for months or years, and only gets executed when the person comes into contact with law enforcement in some other manner (like a traffic stop or a border crossing) and they find out there’s an outstanding warrant.
But it’s not like there’s a time limit before they’re allowed to execute the warrant — once it’s been issued, they have the authority. If they want to, they can go to your house that same day to arrest you.
Counselor, First of all let me say that I really enjoy your legal illustrations. In regard to your last one one "consent", can officer lie to a suspect about whether or not he is police officer. Because since the 4th amendment is only implicated when the government acts, wouldn't it be impossible for the fourth amendment to come into play if the person was not a government actor. Am not trying to be snarky, I only practice family law. I have no idea about the answer. DJA
Yes, a police officer can lie about whether or not he is a police officer. It’s a very common law enforcement strategy.
There is a persistent myth out there that a cop has to tell you the truth if you ask whether he’s a cop, but that’s just nonsense. The whole point of an undercover investigation is to NOT let you know you’re dealing with an undercover. If they had to tell you, then there would be no point, because either the investigation would be blown, or they’d be blown away.
It’s a rumor that was started in prostitution circles many many years ago. It persists because it gets passed around as “common knowledge” by people who don’t know what they’re talking about. (The police love that the rumor still persists, of course — it’s just so reassuring to perps when they ask and the undercover says “no.”)
Debunking this and other similar myths is one of the main reasons why I originally started doing my comic, actually.
On your second point:
You are absolutely right that the Fourth Amendment doesn’t come into play unless the intrusion into your privacy was committed by a government actor (or by a private person acting under government orders).
But a police officer merely stating that he’s not a cop does not convert him into a private actor. He’s still a government actor, no matter what he says. So the Fourth Amendment still applies.