If FLIR devices become more commonly used, then that would reverse the 2001 ruling on police using them to look at peoples' houses? See the recent NPR article and your comic at p=2201.
It’s an intriguing question, and the honest answer is “it’ll depend on who’s on the Supreme Court when the issue comes up again.”
On the one hand, there are definitely judges who think society is better off the more evidence of crimes the police are allowed to gather. Such judges are more likely to say “aha, these gadgets are in common use, so you have to expect that people are using them, so you don’t have that privacy interest any more.”
On the other hand, there are judges who think that, just because a bit of technology is out there, that doesn’t mean the police ought to be allowed to use it without a warrant. Think GPS tracking, internet tracking, etc.
And on that same other hand, there are conservative judges like Scalia who say that by definition you have a privacy interest in whatever is inside your home, so even if other people could sneak a peek at what’s in there the police still can’t.
I’m being way too glib here, so don’t quote any of this in a legal brief, but you get the point.
My guess is most judges would balk at anything that lets the government see what’s inside your home. Just because it might be visible to suitably-equipped citizens, that doesn’t mean you can’t continue to expect it to be private.
a question about self defense with non deadly force vs deadly force. In a case where you're say, a disabled, elderly man, and some 300 pound body builder is going to take a swing at you, you're not allowed to shoot them with a gun, or even brandish said gun to dissuade his attack? But the elderly man stands no chance at defending himself against the attacker with his fists. So he's just supposed to let himself either be hospitalized or beat to death?
Obviously not. The old man’s in immediate danger of severe injury or death. Sounds like deadly force is both proportionate and reasonable to defend himself.
Change who the aggressor is, and you’ll get a different answer: If it’s the elderly man throwing a punch, the 300-lb bodybuilder wouldn’t be allowed to defend himself with a gun.
Historically accurate? You haven't seen the "Mail Call" episode about flamethrowers. The thing included huge a 160+ pound backpack consisting mostly of napalm tanks -- so your life expectancy from the time you started strapping one on was about 20 seconds. That's why the army no longer has them.
Is that the same episode where Gunny explained how to properly deploy a live Holy Hand Grenade of Antioch? I must have watched that one any number of times…
The church and state did not suddenly "become buddies" in the 16th century. They started that way. Rome, Greece, Babylon, etc. all had the church as a department of the state. Separation of the two was a result of the Dark Ages, when national governments effectively disappeared leaving churches on their own in most countries. / What did arise shortly before Henry VIII was Luther's Protestant Reformation. Inquisitions and heresy trials were aimed at stopping that.
Yes, Anonymous. But remember, we’re focusing on England at this point, which had been doing things differently from the rest of Europe. (And the Inquisition was around long before Luther.)
This latest page you’re responding to comes after a few others showing how the church and state had been rivals in England during the later middle ages, and how that separation had played a part in the development of the legal principles being discussed.
Now we’re getting into what happened to that development once church & state became one again.
[Thanks for the feedback, by the way. The comments I get are one of my favorite parts of doing this comic, and nothing makes my day more than someone saying I got something wrong. I’ve learned some cool stuff (and fixed some boneheaded mistakes) that way.]
You know what’s cool? Almost everyone in my audience thinks I’m speaking their language. The ultra-liberals, the über-conservatives, the supermeta libertarians — it’s amazing how they all think I’m on their side.
This is fantastic. Because I’m not trying to please anyone. All I want to do is say “this is how it actually is.”
If most of us think “how it is” corresponds with their “how it ought to be,” then society is probably on the right track.
Think about that. Your political opponent thinks I’m telling their side of the story as much as you think I’m telling yours.
Say it is New Years Eve and the police roll up on the parking lot of a bar and find a sober Greg wrestling with his drunk friend Steve for Steve's car keys. Is prosecutorial discretion the only thing that protects Greg from prosecution for assault with intent to rob?
Can I just say, I love going back and reading the comments in the “Class Participation” section of the comic. Some of the most intelligent, courteous and thoughtful discussions are going on in there. You guys are pretty damn awesome.
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.