Washington College of laW i ameriCan University
Criminal Law Brief
vol. v issue i
Winter 2009
In ThIs Issue
Thomas Jefferson’s Carriage:
Arizona v. Gant’s assault on the
Belton Doctrine
Mixed Messages: The Supreme
Court’s Decisions on Juries in
Death Penalty Cases
The Case for a Criminal law
Theory of intentional infliction
of emotional Distress
an ambiguous request for Counsel
Before and not after a Miranda
Waiver: United States v. Rodriguez,
United States v. Fry and State v.
Blackburn
By anDreW FOiS & lauren SiMMOnS
By leSlie yalOF GarFielD
Juveniles locked up for life for
non-homicides: Cruel & unusual
or an appropriate Punishment?
Panel Summary
By Julie SWaney
Supreme Court updates
By Diana TaFur
By KenneTh Miller & DaviD niven
By harvey Gee
Student editorial:
Fight Fire with Fire: The iCC
Should be More aggressive in Pursuing Crimes of Sexual violence
By MereDiTh OWen
Table of Contents
5
Thomas Jefferson’s Carriage:
Arizona v. Gant’s assault on the
Belton Doctrine
By anDreW FOiS & lauren SiMMOnS
33
The Case for a Criminal law
Theory of intentional infliction
of emotional Distress
By leSlie yalOF GarFielD
51
an ambiguous request for Counsel Before and not after a Miranda Waiver:
United States v. Rodriguez, United States
v. Fry and State v. Blackburn
By harvey Gee
69
104
Mixed Messages: The Supreme
Court’s Decisions on Juries in Death
Penalty Cases
By KenneTh Miller & DaviD niven
Student editorial
Fight Fire with Fire: The iCC
Should be More aggressive in
Pursuing Crimes of Sexual violence
By MereDiTh OWen
111
Juveniles locked up for life for
non-homicides: Cruel & unusual or
an appropriate Punishment?
Panel Summary
By Julie SWaney
113
Supreme Court updates
By Diana TaFur
Criminal Law Brief Fall 2009 Staff
exeCuTive BOarD
Brian meltzer, 2l
Baltimore, mD
Katy graham, 3l
la Jolla, Ca
John nohlgren, 3l
st. Petersburg, fl
Danielle Combes, 2l
Chicago, il
ManaGinG eDiTOr
DeSiGn & layOuT eDiTOr
eDiTOr -in-ChieF
exeCuTive eDiTOr
arTiCleS eDiTOr
PuBliCaTiOnS eDiTOr
Coutrney schumacher, 2l
Wayne, Pa
helena man, 2l
Bellrose, ny
line eDiTOrS
ernest edwards, 2l
Chicago, il
Judith del Cuadro-Zimmerman, 2l
Brooklyn, ny
Diana tafur, 2l
hollywood, fl
JuniOr STaFF
Christine rhee, 2l
hillsborough, nJ
tami martin, 2l
Diamond Bar, Ca
andrew suddarth, 1l
springfield, va
Kevin oakes, 2l
san Juan Capistrano, Ca
ross oklewicz, 2l
reston, va
fredo vasquez, 1l
Charleston, sC
Kierstan Carlson, 2l
medford lakes, nJ
alexandra nunes, 2l
Concord, Ca
Jessica Chin, 2l
hong Kong, China
ryan norman, 1l
Detroit, mi
Jennifer Ponder, 1l
Dallas, tX
Caitlin o’leary, 2l
longmeadow, ma
lisa Bieniek, 2l
Worcester, ma
Brian Doyle, 2l
media, Pn
glenn godfrey, 2l
Belize City, Belize
greta Pedraza, 2l
miami, fl
lorenzo Perez, 2l
miami, fl
abre’ Conner, 1l
lakeland, florida
ruofei Xiang, 2l
fresh meadows, ny
ashley rebstock, 2l
miami, fl
Julie swaney, 2l
Cleveland, oh
2
Kamilah oliphant, 2l
miramar, fl
Winter 2009
Letter From the editor
to our readers,
on behalf of the members of the Criminal law Brief, it is with great pleasure and excitement that
i introduce a new and improved issue for fall 2009. our contributing authors and the members of the
Criminal law Brief have worked diligently to prepare this publication. i would like to take this opportunity thank all those people who made this semester’s issue possible.
first and foremost, i would like to thank our contributing authors. their diverse articles bring
light to the multitudinous controversial issues facing our criminal justice system. Without interesting and
relevant content, we could not have published (quite literally) this issue.
i would also like to thank the editorial Board members for all of their hard work. Danielle Combes,
our executive editor, kept our staff organized throughout the editing process. helena man, our Publications editor, carefully reviewed all of the articles to ensure proper grammar, punctuation, and citation.
Courtney schumacher, our articles editor, searched high and low to find content for our forthcoming issues. Brian meltzer, our managing editor, made sure we remained within our budget throughout the semester. finally, Katy graham, our layout editor, worked many hours using Quark XPress 8 to convert
design all of our content from Word format into the publication format you are currently reading.
gratitude must also be expressed to our line editors, ernest edwards, Diana tafur, and Judith
Cuadro-Zimmerman, for maintaining a watchful eye on each of our articles as they moved through the
editing process.
last but not least, i would like to thank all of the staff editors. they put in considerable time
scrupulously editing each article. such work requires great focus, time, and patience.
you may have already noticed that we have made key design changes, including an updated, crisp
cover design. special thanks to staff editor ashley rebstock for spearheading the effort to redesign our
cover. additionally, we have made a number of formatting improvements throughout the body, and i am
excited to see the Brief evolve as we continue to make aesthetic improvements in coming issues.
finally, i would like to extend an invitation to the annual
Criminal law Brief/Criminal law society symposium at the
Washington College of law on march 29, 2010. the symposium will explore hot-button criminal law issues, primarily focusing on how to balance time-tested constitutional protections
against the practical limitations of modern law enforcement.
leading authorities will discuss such issues as: mandatory minimum sentencing, drug law disparities, application of the death
penalty, requirements for in-person testimony of law enforcement officials vs. offering affidavits, and immigration and
human trafficking laws. more details about the symposium can
be found at the founder’s Day website: http://www.wcl.american.edu/secle/founders/2010/.
The former Criminal Law Brief cover.
Criminal Law Brief
happy reading,
John nohlgren
editor-in-Chief
3
Thomas Jefferson’s Carriage: Arizona v. Gant’s
Assault on the Belton Doctrine
By Andrew Fois And LAuren simmons1
o
n april 21, 2009, in an important ruling for
all criminal justice practitioners, the United
states supreme Court upended the long
standing law regarding searches of the passenger compartments of automobiles incident to arrest
of the occupants thereof. in Arizona v. Gant,2 the Court
took on the twenty-eight-year-old rule governing such
searches established by its holding in Belton v. New
York.3 in doing so, the Court has created new standards
that will inevitably lead to confusion and increased litigation over this issue for
years to come.
to begin to understand the road the Court traveled from Belton to Gant,
21st century criminal justice
practitioners need to close
their eyes and imagine the
following scenario: thomas
Jefferson, with the Declaration of independence in
hand, is racing through the
streets of Philadelphia in his
late 18th century-style horsedrawn carriage on his way to
independence hall. Colonial
law enforcement officers observe his violation of city speed limits, pull Jefferson’s
carriage to the side of the dirt road, and arrest him. in
such a situation, what would Jefferson or his colleagues,
who will go on to draft the Bill of rights, consider a reasonable search? Would they object to the late 20th century supreme Court’s reading of the fourth
amendment? or would the framers have no trouble
with the search of the interior passenger compartment
of Jefferson’s carriage, as well as any wig boxes they
may find therein?
this colonial criminal procedural issue matters
to criminal practitioners today because it was the question on the mind of Justice antonin scalia during the
oral arguments in the Gant case. in Gant, the supreme
Court was asked to revisit its holding in Belton; in Belton, the Court defined the constitutional scope of the exception to the fourth amendment’s Warrant Clause for
4
searches of vehicles incident to a lawful arrest of their
occupants. at issue before the Court in Gant was the
continuing viability of the Belton doctrine authorizing
law enforcement officers to search the entire interior
compartment of an automobile, as well as any containers
therein, contemporaneously with the arrest of a recent
occupant of that vehicle. the automobile arrest exception to the warrant requirement was intended to protect
the physical safety of the arresting police officers and
to prevent the destruction of evidence inside of the car.
Police, prosecutors, and defense counsel should read the
Gant decision carefully because the ruling creates a new,
or at least modified, rule for
how such searches may be
constitutionally conducted.
these changes will significantly alter how practitioners
conduct litigation in this important area.
in an effort to decide the
future of Belton, at least one
Justice
considered
the
framers’ original intent in
writing the fourth amendment. Justice scalia became
frustrated with arizona’s reliance on law enforcement’s
use of procedures endorsed in Belton over the almost
three decades since the issuance of that opinion.4 as an
originalist, Justice scalia had a much longer timeline in
mind and was anxious to hear about the framers’ experiences with the issue of searches incident to arrest in
18th century vehicles. “if you stopped thomas Jefferson’s carriage to arrest thomas Jefferson,” Justice scalia
asked of counsel for arizona, “and you pulled him off
to the side of the road, could you . . . then go up and
search his carriage?”5 Justice scalia was disappointed
by arizona’s slightly flummoxed counsel’s inability to
shed any light on the question of what kind of treatment
the primary author of the Declaration of independence
would have expected from colonial law enforcement authorities.6 the significance of Justice scalia’s question
is that it revealed the degree to which he was willing to
Winter 2009
reconsider the well-established precedent of Belton.
scalia was pleading with counsel to give him something
“to hang [his] hat on” from the framers’ original understanding of what they may have viewed as a reasonable
search under the “carriage exception” to the warrant requirement.7
this article will consider the state of the postcolonial law leading up to the Court’s decision in Belton,
the Belton case itself, and its progeny. then, it will discuss the arizona supreme Court’s holding and reasoning in Gant. it will analyze the positions on both sides
and analyze the questions that each justice raised during
oral arguments. it will propose grounds on which the
Court could have decided Gant and assess what each
would have meant for the criminal justice practitioner.
finally, it will discuss the significance of the Court’s ruling in Gant.
Pre-Belton: Chimel v. CAliFoRniA anD PrOGeny8
in Chimel v. California,9 the United states
supreme Court sought to explain the “search incident to
arrest” exception to the fourth amendment’s warrant
requirement and limit its application to the extent supported by the rationale for the rule. armed with a warrant for Chimel’s arrest, three police officers went to
Chimel’s home to arrest him for the burglary of a coin
shop. as he was being arrested, Chimel denied an officer’s request for permission to search his home. Despite
Chimel’s refusal to give consent, the officers, citing their
authority to conduct a search incident to the arrest,
searched his home and seized evidence linking him to
the burglary.10
the supreme Court confronted the issue of
whether the search of petitioner’s whole house could be
justified as incident to his lawful arrest therein.11 the
Court expressed its intent to clarify the scope of the
search incident to arrest doctrine, noting that its own jurisprudence on the issue had been “far from consistent.”12 the Court began its analysis in Chimel by
rejecting the twenty-eight-year-old standard it had announced in United States v. Rabinowitz13 to govern the
scope of a warrantless search incident to arrest. Rabinowitz permitted such a search to extend to the area in
the “possession” or “under the control” of the arrestee.14
noting the broad sense in which the lower court applied
the Rabinowitz standard to petitioner Chimel, the Court
found it neither “historical nor rational.”15
the Chimel Court walked through the various
scenarios typically faced by police officers when makCriminal Law Brief
ing an arrest. it then analyzed the scope of a permissible
search incident to arrest by reference to the rationale for
that search. thus, the Court found it reasonable for an
officer to search the person of an arrestee in order to
seize any weapons that he may use to threaten the officer’s safety or “resist arrest or effect his escape.”16 the
Court declared that it was also reasonable to search for
or seize any evidence on the arrestee’s person in order
to “prevent its concealment or destruction.”17 the Court
then limited the scope of a permissible search beyond
the actual person of the arrestee only to that area to
which these twin rationales apply.18 the area to which
these two rationales apply, the Court held, is that area
“‘within [the arrestee’s] immediate control’ . . . within
which he might gain possession of a weapon or destructible evidence.”19 the Court thus modified the Rabinowitz standard by forbidding the warrantless search of
any area within the arrestee’s “possession” and narrowing it to that area not merely “under [his] control” but
rather “within his immediate control.”20
setting up the choice as one between “a search
of the person arrested and the area within his reach” on
the one hand and “more extensive searches” on the
other, the Court chose the former.21 the search of
Chimel’s home beyond the area within his immediate
control was unconstitutional if based solely on the
search incident to arrest exception to the warrant clause.
lower courts were left to apply Chimel’s “within
the arrestee’s immediate control” doctrine on a case-bycase basis. their efforts to define the permissible scope
of a warrantless search incident to a lawful arrest proved
difficult and inconsistent.22 in response to the struggles
of the lower courts, the supreme Court began to adopt
bright-line rules to determine the permissible scope of
searches incident to arrest, at least as it applied to the
timing of the search. in United States v. Edwards,23 Justice Byron White, writing for the majority, stated that
“searches and seizures that could be made on the spot
at the time of the arrest may legally be conducted later
when the accused arrives at the place of detention.”24
the Court justified extending the permissible search
doctrine in Edwards because “the normal processes incident to arrest and custody had not yet been completed
when edwards was placed in his cell.”25 this is broadened from the scope of Chimel because at the time respondent was searched, there was neither a danger to the
officer nor a risk of destruction of any evidence—the
original Chimel rationales for the warrantless search.
in United States v. Robinson,26 the supreme
Court drew another bright-line rule delineating the per5
missible scope of the search of the person of an arrestee
incident to his arrest.27 in that case, robinson was
legally arrested for driving an automobile after his operator’s permit was revoked.28 During a full custodial
search of robinson’s person, the arresting officer discovered a crumpled up cigarette package containing
packets of heroin in robinson’s breast pocket.29 the evidence was admitted in his trial and led to his conviction
for a narcotics offense.30
for purposes of its analysis, the supreme Court
divided the well-established exception to the warrant requirement for searches incident to arrest into two propositions: (1) “a search may be made of the person of the
arrestee by virtue of the lawful arrest” alone and (2) “a
search may be made of the area within the control of the
arrestee.”31 the Court contrasted its decisions on these
two propositions noting that the law regarding the search
of the arrestee’s person has been settled and consistently
applied,32 while the extent of the area which may be
searched has been “subject to differing interpretations.”33
the D.C. Circuit Court had reasoned that even
a search of an arrestee’s person incident to arrest is limited by the possible presence of weapons or evidence.
it found that there was no reason to expect that evidence
would be revealed by a full body search.34 the Circuit
Court also narrowed the scope of authority to search
based upon a risk of concealment or destruction of evidence to such evidence that may relate to the offense for
which the arrestee was being brought into custody.35 in
reversing the appellate court, the supreme Court emphatically rejected a limitation of the search of robinson’s person to one only for weapons as well as the
Circuit Court’s “suggestion that there must be litigated
in each case the issue of whether or not there was present one of the reasons supporting the authority for a
search of the person incident to a lawful arrest.”36
the Court rejected a standard that would require
a case-by-case, totality of the circumstances analysis to
determine whether the arrestee may pose a threat to the
safety of the officer or be in a position to conceal or destroy specifically relevant evidence. “the authority to
search the person incident to a lawful custodial arrest,
while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation
that weapons or evidence would in fact be found upon
the person of the suspect.”37 it is the lawful arrest itself
that justifies the search of the arrestee’s person, not the
possibility under the circumstances of the case that
6
weapons or evidence might be found.38
thus, the Court drew a clear bright-line rule that
allows the police, upon arrest of a person, to conduct a
full search of that person, as well as any containers
found on his person. of course, the rationale underpinning the rule is the protection of the officer’s safety and
prevention of destruction of any evidence the arrestee
may be carrying. the permissible scope of the search,
however, is not “narrowly limited by [those] twin rationales.”39
While the Robinson Court “established an automatic right to search everything found on a person who
has been subjected to a custodial arrest,”40 it was silent
about whether that automatic power extended to containers or packages found within the arrestee’s “immediate control.”41
new YoRk v. Belton’S “BriGhT-line” rule
in 1981, the supreme Court addressed the issue
of the permissible scope of searches incident to arrests
in automobiles in New York v. Belton.42 on april 9,
1978, respondent roger Belton was riding in an automobile that sped past state trooper Douglas nicot who
was on routine patrol in an unmarked car on the new
york thruway.43 nicot chased down the car, ordered its
driver to pull over to the side of the road, and found that
the car was occupied by four men, including Belton.44
after requesting the driver’s license and the vehicle registration, nicot discovered that none of the four men
owned the car.45
While making these routine inquiries, trooper
nicot was able to smell an odor he recognized to be that
of burnt marijuana.46 he saw an envelope on the floor
of the car with the name of a brand of marijuana marked
on it.47 trooper nicot ordered all four men out of the
car and placed each under arrest for unlawful possession
of marijuana.48 after patting down each arrestee, nicot
separated them so that they were unable to reach each
other.49 he then returned to the car and picked up the
envelope in which he found marijuana.50 trooper nicot
then conducted a body search of each of the arrestees.51
he next conducted a search of the entire passenger compartment of the car; nicot found a black leather jacket
belonging to Belton on the back seat of the vehicle.52
nicot searched the jacket, unzipped a closed pocket, and
found what he suspected to be cocaine.53 he seized the
jacket and the envelope of marijuana and drove Belton
and the other three arrestees to the closest police station.54
Winter 2009
Belton was charged with, and found guilty of, Court, lamenting that difficulty, extolled the virtues of
criminal possession of a controlled substance.55 his pre- a clear set of rules for the fourth amendment that potrial motion to suppress the cocaine that trooper nicot lice, citizens, and courts can easily understand and conhad found in his jacket was denied.56 he appealed the sistently apply.63 as applied to searches of the person,
denial of his motion to the new york Court of appeals such a “straightforward rule, easily applied and preand the Court of appeals reversed.57 the appellate court dictably enforced” could be found in the Court’s holding
held that the search of the jacket and the seizure of the in United States v. Robinson.64 the Court expressed its
cocaine were unconstitutional because “there was no disappointment that no such rule has “emerged from the
longer any danger that the arrestee or a confederate litigated cases” regarding the issue in Belton.65
the Court, determined to take the matter into its
might gain access to the article.”58 thus, new york’s
highest court was interpreting the search incident to law- own hands, announced two bright-line rules in Belton.
ful arrest doctrine, as it applies to arrests involving au- Both rules involved the constitutionally permissible
tomobiles, as being limited in scope to the extent scope of searches of the surrounding areas of arrestees
necessary to support its underlying rationales of the ar- who are recent occupants of automobiles.66 the first
resting officer’s safety or the integrity of any evidence rule dealt with the interior compartment of the vehicle
of criminal activity. the same rationales would later be and the second with packages or other containers inside
that passenger compartment.
used by the arizona supreme Court
as for the first rule, the Court
to invalidate the search in Gant. it
[T]here
may
be
a
disheld that “[i]n order to establish
is beyond dispute, of course, that the
search incident to arrest doctrine aptinction between the the workable rule that this category of cases requires . . . we hold
plies to arrests made of individuals
scope
of
searches
perthat when a policeman has made a
who had been riding in automobiles
as much as it does to those merely
mitted incident to au- lawful custodial arrest of the occupant of an automobile, he may, as
walking along the street. the issue
tomobile arrests and a contemporaneous incident of
the supreme Court faced in New
York v. Belton, as expressed by Jussearches incident to that arrest, search the passenger
compartment of that automotice Potter stewart who authored the
other arrest scenarios bile.”67 the supreme Court remajority opinion, was “[w]hen the
jected the argument that the court
occupant of an automobile is subnot involving autobelow found persuasive: that the
jected to a lawful custodial arrest,
mobiles.
search was unconstitutional bedoes the constitutionally permissicause the four men were no longer
ble scope of a search incident to his
within the reach of the passenger
arrest include the passenger com59
compartment of the automobile at the time of the search.
partment of the automobile in which he was riding?”
this expression of the issue, referring to the scope of ar- the men had been separated and under the control of
rests in automobiles, implies that there may be a distinc- the officer early in the encounter.68 Despite the fact that
tion between the scope of searches permitted incident to the officer was outnumbered four to one, there was no
automobile arrests and searches incident to other arrest evidence in the record that the occupants posed a danger
to his safety by virtue of a potential weapon in the car.
scenarios not involving automobiles.
the supreme Court began its analysis in Belton neither was there any evidence that any of the arrestees
by acknowledging the difficulty that courts were expe- were in a position to destroy or conceal evidence in the
riencing in applying the Chimel rule, especially as it re- car. nevertheless, the supreme Court upheld the search
lated to arrests of the occupants of automobiles. Chimel, of the entire passenger compartment of the vehicle
of course, defined the constitutionally permissible scope which the arrestees had recently occupied based on the
of a warrantless search incident to a lawful arrest as lim- arrest alone.
ited to the area within the immediate control of the arthe second bright-line rule promulgated by Bel60
the Court acknowledged, however, that ton regarded containers in the automobile’s passenger
restee.
“courts have found no workable definition of [this area] compartment. the supreme Court went on to rule that
when that area arguably61 includes the interior of an au- “[i]t follows from [the conclusion that police officers
tomobile and the arrestee is its recent occupant.”62 the may search the passenger compartment of a vehicle] that
Criminal Law Brief
7
the police may also examine the contents of any containers69 found within the passenger compartment, for if
the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.”70
the Court’s imprecise language about the containers being as much within reach of the arrestee as the
passenger compartment is unfortunate. it suggests
wrongly that the search of the passenger compartment
is predicated upon it being actually within the reach of
the arrestee; a requirement it has clearly rejected. however, the Court assumed that the passenger compartment
and the containers would actually be within reach in
most cases.71 aside from the automobile arrest scenario,
the entire search incident to arrest doctrine assumes the
value of a clear line based upon the danger to the officer
and of the destruction of evidence that is inherent in the
nature of an arrest. accordingly, a bright-line rule is
needed for “predictability and ease of application.”72
as has been recognized by commentators, the
line can be drawn in any number of different places.
the Belton Court explained that the reason for its placement of the line where it did was that, in reality, the accessibility of the passenger compartment and containers
therein will be the case more often than not.73 the majority is making the educated wager that they would
more often be right than wrong; thus justifying those
rare instances in which there are no opportunities for a
suspect to access weapons or evidence. Whether this is
empirically true, especially at present, is open to question. it may be true that the arrestee may more frequently be in handcuffs in the police car when the search
of the automobile is conducted. that, of course, was the
issue presented in Gant as will be discussed below.
two places where the Court did not draw brightline rules were the questions of whether arrestees were
“recent occupants” of the vehicle and whether the search
of the car incident to the arrests was “contemporaneous”
with the arrests themselves. fleshing out these two temporal requirements has led to considerable litigation and
served to protect and justify the rationales of officer
safety and protection of any evidence in the car. the
temporal requirements go a long way to confirming the
continued viability of the rationales while maintaining
the bright-line rules regarding the scope of the search.74
an alternative to the bright-line rule would have
been a holding that a search of an automobile’s interior
and any containers therein can be conducted only if the
recent occupants pose an actual, provable threat to the
safety of the police officer or to the integrity of any evidence of the suspected crime or otherwise. this stan8
dard, however, would have proven confusing and potentially dangerous for police to apply.75 it would have
required trial courts to undertake a case-by-case evaluation of when, during the course of each particular arrest
situation, either a threat to the officer or to the integrity
of the evidence existed. any search of a car and containers therein would no longer be permissible once both
of the twin dangers had subsided. such a determination
would involve factual hearings at which the court would
have to make fine distinctions. Prosecutors, police, defense counsel, and judges would need to be prepared for
additional litigation in most, if not all, car arrest cases.76
in addition to these difficult factual determinations,
there would still be a need for findings on the twin
Chimel rationales.
the supreme Court went on in several other
cases to reaffirm its holding and rationale for the bright
line rules it announced in Belton.77 almost every court
that has considered the bright-line rules at both the federal and state levels has acknowledged and adopted the
bright-line rules without regard to limitations imposed
by the need to satisfy the underlying rationales.78 some
state courts have declined to follow Belton’s lead regarding the bright-line rules when they are interpreting their
own state constitutions.79 some other courts, while accepting the constitutional ruling in Belton, have found
it inapplicable for a variety of reasons.80 some expert
commentary has defended the bright-line rules of Belton81 while a considerable amount has been generally
critical of the Court’s approach.82
thRonton v. United StAteS83
twenty-three years after its opinion in Belton,
and just four years before granting certiorari in Gant,
the supreme Court took up a case resembling the hypotheticals that Justice Brennan’s dissent proffered in Belton and brightened the bright-line rule it drew in that
case. the issue presented in Thornton v. United States
was whether the rule in Belton “is limited to situations
where the officer makes contact with the occupant while
the occupant is inside the vehicle, or whether it applies
as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle.”84
the answer the Court provided to that question underscores the conclusion that a search incident to the arrest
of a recent occupant of a vehicle does not depend on the
arrestee’s actual ability to reach weapons or evidence in
the passenger compartment.
Winter 2009
norfolk, virginia Police officer Deion nichols
was in uniform driving an unmarked police car when he
noticed petitioner thornton driving a lincoln town
Car.85 officer nichols observed thornton slow down
and avoid driving directly next to nichols’ car, and suspected that thornton recognized him to be a police officer and that he was trying to hide something from
him.86 nichols pulled over, noted the license plate of
thornton’s car, and found that they were registered to a
different model car.87
Based on this information, nichols prepared to
pull thornton over.88 Before he was able to do so,
thornton pulled off the road into a parking lot and got
out of the vehicle.89 officer nichols parked behind
thornton, stopped him as he was walking away from
his car, and asked for his license.90 nichols thought that
thornton appeared nervous—thornton began speaking
incoherently, sweating, and licking his lips.91 thinking
thornton could be armed and dangerous, officer
nichols asked whether thornton was carrying a weapon
or drugs on his person or in his car.92 thornton denied
possessing either and agreed to the officer’s request to
perform a frisk search.93 During the search, nichols felt
a bulge in thornton’s left front pocket.94 nichols again
asked thornton if he was carrying any illegal drugs, and
this time thornton admitted that he was.95 nichols then
removed two separate bags from thornton’s pocket: one
contained a large amount of crack cocaine and the other
contained three smaller bags of marijuana.96 thornton
was handcuffed, placed under arrest, and put in the back
seat of the police car.97 only then did officer nichols
search thornton’s car, in which he found a gun under
the driver’s seat.98
thornton was arrested and charged with possession of cocaine with the intent to distribute, possession
of a firearm during a drug trafficking offense, and possession of a firearm by a convicted felon.99 thornton’s
motion to suppress the firearm and other evidence was
denied, and he was convicted of all three counts.100 on
appeal, the United states Court of appeals for the second Circuit rejected thornton’s argument that Belton
was limited to situations in which police first make contact with an arrestee while he is still in the car.101
in Belton, the officer made first contact with the
arrestee while he was still in his vehicle, ordered him to
get out of the car, and then placed him under arrest.102
thus, the fact that the arrest was made outside of the vehicle, as was the case in Thornton, did not preclude a
search of the car incident to that arrest. the Thornton
Court reasoned that the issue was not whether the arrest
Criminal Law Brief
was made outside of the car—that scenario was settled
by law.103 the issue was whether there is a constitutional distinction over whether first contact between the
officer and the suspect takes place after the suspect gets
out of the car on his own initiative or at the officer’s direction.104
the Court rightly and quickly dispensed with
this issue in favor of the government.105 it would be surprising for the Court to conclude that the legality of a
search depends on whether the arrestee exited his car by
choice or at the order of an officer, especially considering the search of an arrestee’s car is legal even if arrested
outside of the vehicle.
What is more significant about Thornton, for our
purposes, is the issue of thornton’s proximity to the car
and other circumstances at the time of his arrest and the
search of the car. the important issue is not why thornton got out of the car, but where he was at the time
nichols searched the car and whether the officer’s safety
or potential evidence was threatened by thornton after
being arrested, handcuffed, and placed in the patrol car.
the circuit court correctly applied Belton below, and the
supreme Court did not directly address the question, assuming that this was not an issue. the Court interpreted
Thornton on the much more narrow, and more easily decided, issue of whether the place of first contact is constitutionally significant for the validity of the search.106
in Belton, the Court “placed no reliance” on the
fact that the officer had “ordered the occupants out of
the vehicle, or initiated contact with them while they remained within it.”107 the Thornton Court stated that it
did not “find such a factor persuasive in distinguishing
the current situation, as it bears no logical relationship
to Belton’s rationale.”108 Pointing to the rationale of Belton, the Court concluded that, in determining the area
within the arrestee’s immediate control, it makes no difference “whether the arrestee exited the vehicle at the
officer’s direction, or whether the officer initiated contact with him while he remained in the car.”109 the
Court then analyzed the issue as such: identical concerns
regarding officer safety and the destruction of evidence
exist regardless of whether “the arrest [is of] a suspect
who is next to a vehicle . . . [or] of one who is inside the
vehicle.”110 While the Court posed the issue as whether
the officer ordered respondent out of the car or whether
he got out on his own, the Court based its analysis on
whether the arrest was made outside or inside the car.
such an approach moves the issue closer to the question
addressed in Gant.
the Thornton Court observed that the danger
9
sought to be addressed in Belton was “the fact of the ar- arrestee might reach, and explains that the Belton brightrest.”111 given an arrest, the likelihood of getting a line rule in automobile arrests is justified because the
weapon or destroying evidence is the same whether or passenger compartment is “generally, even if not innot the arrestee exited before the officer initiated contact evitably within the arrestee’s immediate control.”117
scalia notes that thornton was not in or near the
and is “outside of, but still in control of” the vehicle.112
the Constitution does not require officers to risk their car; instead, he was handcuffed and secured in the back
safety or the destruction of evidence by a “contact initi- of the police car at the time of the search.118 the risk
ation” rule.
that thornton could reach a weapon or evidence was
of course, the Belton requirement that the ar- “remote in the extreme” compared to the more dangerrestee be a “recent occupant” of the automobile would ous location of the arrestees in Belton. 119 “the Court’s
remain viable. Whether an arrestee is a “‘recent occu- effort to apply our current doctrine to this search
pant’ may turn on his temporal or spatial relationship to stretches it beyond its breaking point,” wrote scalia.120
the concurrence identified and rejected three
the car at the time of the arrest and search,” the Court
113
explained. it then went on to imply that the temporal possible justifications for the Thornton search based on
and spatial factors that may determine whether someone the two Chimel rationales:
is a recent occupant need not ex1. the arrestee may escape and
a gun or evidence from the car.
ceed those of Belton, stating that
It is no longer accurate get
“not all contraband in the passenthis feat, scalia writes, would be
ger compartment is likely to be
to assume, as Belton consistent with Judge goldberg’s
readily accessible to a ‘recent oc“mythical arrestee ‘possessed of the
did,
that
the
arrestee
cupant,’” and “[i]t [was] unlikely
skill of houdini and the strength of
in this case that petitioner could
will generally, if not hercules.’”121
2. if the officer could have made
have reached under the driver’s
always,
have
access
to
the search at the time of the actual arseat for his gun once he was outrest near the car then he should be
side of his automobile.”114 the
the passenger comfirearm and passenger compartable to make it after he sensibly separtment
and
its
conment in general, however, were
cures the arrestee. scalia argues that
no more inaccessible than were
tainers for very long. the search is not an inevitable entithe contraband and the passenger
tlement but rather an exception to a
rule justified by the necessity of procompartment in Belton. the
need for a clear rule that would be readily understood tecting the officer and the evidence, the absence of
by officers and would not be dependent on differing es- which would otherwise make the search unlawful.122
3. although neither danger was present in this
timates of what items were within reach of an arrestee
at any particular moment justifies the sort of generaliza- case, Belton searches are reasonable under the fourth
tion that Belton enunciated. once officers determine amendment. it is better to have a bright-line rule even
that there is probable cause for an arrest, “it is reason- if some are not reasonable on their particular facts.123
as a practical matter, it is very common to have
able to allow officers to ensure their safety and to preserve evidence by searching the entire passenger the arrestee in handcuffs in the squad car precisely in
order to neutralize him as a threat to the officer or to evcompartment.”115
the thornton concurrence authored by Justice idence. scalia correctly noted that cases upholding such
scalia and joined by Justice ginsburg offers an alterna- searches are multitudinous and that courts have upheld
tive standard and gives some insight into why the Court searches where the arrestee is driven away from the
granted certiorari in the Gant case. the concurrence scene.124 today’s police training makes this type of
skips the issue the Court addresses regarding the when, search routine.125 it is no longer accurate to assume, as
where, and why of initial contact, and instead considers Belton did, that the arrestee will generally, if not always,
the circumstances at the time of the actual search. it be- have access to the passenger compartment and its congins with Chimel’s “immediate control” standard gov- tainers for very long. the concurring justices correctly
erning the scope of a search incident to a lawful arrest concluded that this is no longer the case in light of police
to find weapons or evidence.116 Thornton notes the ra- adaptation to the Belton rule.
tionale as the need for covering that area into which an
however, Belton may be justifiable, writes
10
Winter 2009
scalia, simply because the car may contain evidence of
the crime for which the person was arrested.126 scalia’s
concurrence intimates that it is reasonable to search for
evidence of a crime when and where the person is arrested for that crime. But the narrower Chimel rule, he
notes, also has historical support.127 therefore, either
the Rabinowitz or Chimel rules represent plausible
means of analysis. indicating his discomfort with Belton, scalia writes that its historical support is based only
on stare decisis.128 scalia further writes that Belton cannot be explained as an application of Chimel.129 rather,
it is a return to broader pre-Chimel authority limited to
automobiles because of a reduced expectation of privacy
and heightened law enforcement needs. returning to
this “evidence of the crime” standard would help reconcile Robinson (police may search the person incident to
arrest without regard to presence or absence of either
Chimel rationale because the fact of the arrest alone is
enough justification) and Rabinowitz (the arrest itself is
not enough to justify the search but the search is justified
based on a reasonable belief that evidence would be
found).130
scalia concludes by offering a new standard
based on, but limiting, Belton: “[we] would therefore
limit Belton searches to cases where it is reasonable to
believe evidence relevant to the crime of arrest might be
found in the vehicle.”131 Pursuant to an arrest for a drug
offense it is entirely reasonable to believe that the car
from which the arrestee emerged and was still close to
could contain further contraband or other similar related
evidence. this standard still leaves a number of questions unanswered and would require additional and extensive fact-finding hearings by the trial court as it
considers the issue on a case-by-case basis.132
Justice stevens’ dissent, to which Justice souter
joined, emphasizes the fact that first contact occurred
when thornton was out of the car. thornton was essentially an “arrested pedestrian.”133 the dissent argues that
Chimel alone is enough to govern this situation because
it is no longer an automobile arrest. the same protections should apply to a recent occupant of a vehicle as
to a recent occupant of a house. the majority, stevens
writes, “[e]xtends Belton’s reach without providing any
guidance for the future application of its swollen
rule.”134
the opinions in Thornton reveal uneasiness with
Belton by at least five justices: scalia, ginsburg,
stevens, souter and o’Connor. in light of this, one can
ask why the Court did not address the Belton issue in its
2004 Thornton opinion. like gant, thornton was in
Criminal Law Brief
handcuffs in the rear of the patrol car at the time of the
search. Perhaps buyer’s remorse after Thornton helps
explain why the Court decided to grant certiorari in
Gant.
ARizonA v. GAnt: The CaSe BelOW135
During the daylight hours of august 25, 1999,
two uniformed officers of the tucson police department
knocked on the door of a house in response to a tip that
activities involving illegal narcotics were taking place
inside.136 rodney gant answered the door.137 the police
officers asked to speak to the owner of the residence,
and gant responded by telling them that the owner was
away and would return later in the afternoon.138 Before
returning that evening, the officers learned that there
was an outstanding warrant for gant’s arrest for driving
with a suspended license.139 While the officers were in
the process of making arrests outside the front of the residence, gant drove up and parked his car in the driveway.140 as gant got out of the car, an officer
immediately called him over, intending to place him
under arrest based on the outstanding warrant.141 gant
walked eight to twelve feet from the car toward the officer, and an officer handcuffed him and placed him
under arrest.142 Within moments, gant was seated in the
back seat of the patrol car under the supervision of an
officer.143 two other officers, pursuant to their training
in the permissible scope of a search incident to a lawful
automobile arrest, searched the passenger compartment
of the car that gant had been driving just moments before.144 in the course of that search, the officers found a
small plastic bag of cocaine and a pistol.145 Contemporaneously, two others had also been arrested and
placed in the back seats of two other police vehicles.146
in all, four officers were present at the scene, which was
considered secure.147
the procedural history of the case is less simple.
Based on the bag of drugs, gant was charged with possession of a controlled substance and possession of drug
paraphernalia.148 the trial court denied gant’s motion
to suppress both the drugs and the bag.149 Consequently,
gant was convicted of both counts.150 on appeal, the
arizona Court of appeals reversed the denial of gant’s
motion to suppress.151 the arizona supreme Court denied review but the United states supreme Court
granted the state’s petition for certiorari.152 the
supreme Court vacated the opinion of the Court of appeals and remanded for reconsideration in light of a relevant case that had been decided by the arizona
11
supreme Court in the interim.153 that interim case, State
v. Dean,154 held that if an arrestee is not a recent occupant of the car from which he is arrested then Belton
does not apply.155 the Court of appeals remanded
gant’s case to the trial court for determination of
whether gant was a “recent occupant” under state and
federal law. the trial court found that gant was, in fact,
a recent occupant and again upheld the search and admission of the evidence.156 gant again appealed to the
arizona Court of appeals, which again reversed on
grounds that the search was not “contemporaneous”
with gant’s arrest and that the two rationales were not
present for the automobile search incident to a lawful
arrest exception to the warrant requirement of Chimel.157
the state appealed to the arizona supreme Court,
which affirmed,158 and the United states supreme Court
granted the state’s second petition for certiorari.159
the arizona supreme Court posed the issue in
Gant as follows: does the search incident to arrest exception permit the warrantless search of an arrestee’s car
“when the scene is secure and the arrestee is handcuffed,
seated in the back of a patrol car, and under the supervision of a police officer”?160 the court held that under
such circumstances such a search is not justified.161 By
framing the issue as it did, the arizona supreme Court
distinguished Belton on its facts. more difficult was distinguishing Thornton, the facts of which are essentially
identical to those in Gant. the arizona supreme Court
unpersuasively argued that the only issue the petitioners
raised in Thornton was the significance of when first
contact occurs and that the Thornton Court could not
and did not reach the issue presented in Gant.
Before the arizona supreme Court, the state argued gant’s case was an easy one because Belton and
Thornton were controlling.162 But unlike Belton, the
court held that this case did not deal with the permissible
scope of a search of an automobile incident to a contemporaneous arrest of a recent occupant but “with the
threshold question whether the police may conduct a
search incident to arrest at all when the scene is secure.”163 “Because Belton does not purport to answer
this question,” the arizona supreme Court claimed, “we
must determine whether officer safety or the preservation of evidence, the rationales that excuse the warrant
requirement for searches incident to arrest, justified the
warrantless search of gant’s car.”164
the arizona supreme Court read the record as
showing that the scene was completely secure.165 there
was no reason to think anyone had access to the passenger compartment or that the safety of the officers or any
12
evidence was at risk. the arizona supreme Court held
that “absent either of these Chimel rationales, the search
cannot be upheld as a lawful search incident to arrest.”166
the arizona supreme Court claimed that Gant
did not require it to “reconsider Belton” because the
facts were very different.167 it made no effort, therefore,
to offer arguments for abandoning the rule of stare decisis. in Belton, the court emphasized that there was one
officer and four unsecured suspects outside the car168
thereby putting the safety of the officer and the integrity
of the evidence at risk. therefore, the Chimel reasons
for a search of the passenger compartment incident to
arrest were at hand in Belton, unlike in Gant.169 the
court read Belton as first requiring, as a threshold issue,
the determination of one or both Chimel conditions to
justify a search at all and then, if one condition applies,
imposing a bright-line rule solely on the scope of the
search.170
the state used the Belton rationale to argue that
because the passenger compartment is usually within
reach of an arrestee, it is unnecessary to analyze the exigency in each case. the court incorrectly held, however, that at least one exigency is necessary or it would
be permissible to search the car an hour later, a result
that was rejected in Chimel. the state further argued
that under Robinson, the Chimel justifications are presumed to exist by virtue of the arrest itself and that the
prosecution need not show actual danger in order to
search a car.171
the arizona supreme Court rejected these arguments. it wrote that Robinson instead teaches that police
can perform a search incident to arrest without proving
in any particular case that they were concerned about
safety or evidence because it is presumed present in
every arrest.172 But if those concerns “are no longer
present,” then the justifications are absent and a warrant
is required.173 according to the arizona supreme Court,
potential danger to safety and evidence is a presumption
that can be rebutted by the defense, even if it is a search
of arrestee’s person not involving a vehicle. the burden
is then shifted to the government to prove that either a
threat to the officer’s safety or to the integrity potential
evidence was indeed present in order to take advantage
of the Belton warrant exception.174
the arizona supreme Court recognized that
most other courts have found Belton and Thornton dispositive on similar facts,175 but the court did not read
them as abandoning the Chimel justifications for warrantless searches incident to lawful arrests in automobiles. the majority acknowledged the need for clear,
Winter 2009
understandable rules in this area and noted the opposi- arrest. it explained that the court was wrong because
tion of arizona law enforcement to any changes in Bel- the validity of a Belton search does not depend on the
ton search procedures.176 the majority, however, presence of Chimel rationales in a particular case.184 the
rejected the warnings that law enforcement will “game” new york state Court of appeals in Belton made the
the rules and will not secure the arrestee until the search same mistake and the supreme Court corrected that
is done, and thus risk putting themselves in jeopardy.177 error.185 Brennan’s dissent in Belton showed that he
no other theories were advanced or relied upon, such as knew exactly what the majority was doing.186 Brennan
the automobile or impoundment exceptions, to justify observed that “[t]he Court today substantially expands
the warrantless search.
the permissible scope of a search incident to a lawful arthe en banc opinion of the arizona supreme rest by permitting police officers to search areas and
Court in Gant was decided by a 3-2 vote. Justice W. containers the arrestee could not possibly reach at the
scott Bales authored the dissenting opinion and con- time of arrest.”187
cluded that the majority’s reasoning was inconsistent
the majority in Gant took issue with the Belton
with Belton. there are “good reasons to reconsider Bel- majority in the same way Brennan did in his dissent.
ton,” he wrote, but “doing so is the sole prerogative of Brennan unsuccessfully argued that “[w]hen the arrest
the United states supreme Court.”178 the dissent re- has been consummated and the arrestee safely taken into
custody, the justifications underlying
jected the majority’s claim that BelChimel’s limited exception to the
ton and Thornton do not control.179 it
did not read Belton as requiring a In Belton, the search warrant requirement cease to apply:
threshold finding of one of the
at that point there is no possibility
did
not
take
place
that the arrestee could reach weapons
Chimel factors to justify a Belton
search.
until the officer had or contraband.”188 Based on Brenthe dissent persuasively surnan’s dissent in Belton, it is hard to
already
removed
veyed the arguments against the maunderstand how the Gant majority
jority’s conclusions. according to
the defendant from could adopt an interpretation that the
the dissent, Belton was an extension
Belton majority specifically rejected.
the
car.
The
Belton
in his dissent in the arizona
of Chimel and Robinson. in Robinson, searches of a person incident to
supreme
Court, Bales wrote that
Court did not then
arrest are permissible regardless of
“Belton is also inconsistent with the
look to see if either majority’s focus on the Chimel ratiowhether, in a particular case, “there
189
was present one of the reasons supof the Chimel ratio- nales at the time of the search.” in
porting the [exception to the warrant
Belton, the search did not take place
nales were present. until the officer had already removed
requirement].”180 the lawful arrest
the defendant from the car.190 the
itself justifies the search. “[t]he authority to search the person incident
Belton Court did not then look to see
to a lawful custodial arrest, while based upon the need if either of the Chimel rationales was present at that
to disarm and to discover evidence, does not depend on point. it stated that the search was justified by the arrest
what a court may later decide was the probability in a itself. the Court in Belton held that the arrest was jusparticular arrest situation that weapons or evidence tified because of circumstances thought generally to
would . . . be found.”181
exist during the arrest of a recent occupant, not on any
the dissent writes that the supreme Court de- particularized concerns for safety or evidence. even the
fined the area of immediate control with the generaliza- jacket in the passenger compartment was ruled to be
tion that the passenger compartment and any containers within Belton’s “immediate control” for the purpose of
therein may be searched contemporaneously to the ar- a search incident to arrest.191
Justice Brennan recognized that under the ruling
rest of a recent automobile occupant.182 it was therefore
permissible to search containers, including containers in Belton, “the result would presumably be the same
that could not hold weapons or evidence of the crime even if [the officer] had handcuffed Belton and his comfor which the arrest was made.183
panions in the patrol car before placing them under araccording to the dissent, the majority erred in rest.”192 nearly every appellate court that has since
holding that the search was not incident to gant’s lawful considered the issue has confirmed Brennan’s point.193
Criminal Law Brief
13
this does not, as the majority claims, mean that
police officers may conduct warrantless searches hours
and miles removed from the arrest. Belton makes clear,
and the Gant majority does not disagree, that the car
searched must be that of a “recent occupant” and come
“as a contemporaneous incident” of the arrest.194 the
arrestee need not be in the car nor must the search be simultaneous to the arrest as long as there is some temporal proximity.195
Bales recognized that the arizona supreme
Court majority created a new test that ignored Belton’s
determination that searches in this context should be
guided by a “straightforward rule” that does not depend
on case-by-case adjudications. the arizona supreme
Court majority says that a Belton search is not justified
unless, “based on the totality of the circumstances,”
there is a reasonable risk to the officer’s safety or preservation of evidence.196 such an inquiry can only be made
on a case-by-case basis, first by police officers and then
by the trial and reviewing courts.197 this practical result
is at odds with the core motivation of Belton: to develop
a clear rule not dependent on differing estimates of what
items were and were not within reach of an arrestee at
any particular moment.198 this imperative justifies the
sort of generalization which Belton enunciated.
Belton already requires some case-by-case
analysis of the totality of the circumstances itself
through the twin requirements that the arrestee is a recent occupant and that the search is contemporaneous
with the arrest.199 these are threshold requirements that
trigger the right to conduct a Belton search of a car, the
scope of which is the passenger compartment and any
containers. these determinations certainly do not mean
that there must be case-specific findings of exigent circumstances at the time of the search. in fact, it suggests
the contrary.
Justice Bales did add that the Belton bright-line
rule “has long been criticized and probably merits reconsideration.”200 the bright-line rule, he wrote, created
“a significant exception to the fourth amendment’s
warrant requirement by making a generalization about
the exigencies of arrests involving automobiles and then
allowing searches whether or not the concerns justifying
the exception were present in any particular case.”201
Bales criticizes Belton as resting on a “shaky foundation” that has gotten more tenuous over time because
police now routinely arrest and handcuff arrestees before conducting Belton searches.202
there are, however, alternative ways of dealing
with Belton’s weaknesses other than the majority’s
14
method. one such alternative, Bales suggested, would
have been for the arizona supreme Court to ground its
holding in the arizona state constitution rather than the
United states Constitution, as some other state courts
have done.203
as will be discussed below, the certiorari petition and the oral argument revealed that the Court was
interested in reassessing the twenty-eight-year-old holding in Belton, as well as the four-year-old holding in
Thornton. that subsequent interest still does not explain, however, the arizona supreme Court’s disregard
of the established precedent in Belton and Thornton.
the arizona court’s reinterpretation of the Belton doctrine was too clever by half and unjustified wishful
thinking. it did not distinguish, in any meaningful way,
the facts in Gant from Belton and especially from
Thornton. in the case of Thornton, it tried to distinguish
on the issue instead. in the case of Belton, the arizona
court chose to challenge its bright-line rule by arguing
that the placement of the line may be logically inconsistent with the reason for the search in the first place. the
court’s decision represented a blow to the authority of
the supreme Court of the United states in determining
the meaning of the Constitution of the United states.
the arizona supreme Court could have based its holding on the arizona state constitution and had its way on
the streets of that state. the court chose, however, to
flaunt its rejection of Belton and throw a gauntlet before
the U.s. supreme Court. the supreme Court’s subsequent willingness to revisit Belton is no excuse for the
arizona supreme Court’s judicial insubordination. it
should have applied the law and let gant seek certiorari
in the supreme Court.
The uniTeD STaTeS SuPreMe
COurT COnSiDerS GAnt204
in its petition for a writ of certiorari, the state
of arizona argued, rightly in our view, that the arizona
supreme Court’s opinion in Gant not only conflicted
with, but actually sought to overrule Belton and Thornton. By substituting a “factual assessment in every case
[of] whether the justifications underlying the search incident to arrest actually exist,”205 the Gant court “contradicts and effectively ‘overrules’” Belton206 and
“directly contradicts [its] language and spirit.”207 the
supreme Court rejected this case-by-case analysis in
Belton, a rejection reaffirmed in Thornton under nearly
identical facts.208 arizona asked the supreme Court to
Winter 2009
take the case because the ruling “conflicts with the holdings of nearly every state and federal court that has applied Belton and Thornton to factual situations like
gant’s.”209 it repeatedly argues that the Gant “case-specific assessment of actual risks to officers and evidence”
is “unworkable for the very reasons that [the supreme]
Court has repeatedly cited in support of a bright-line
rule.”210 the Gant decision “thwarts” the Court’s efforts
to impose a “straightforward rule, easily applied, and
predictably enforced.”211
in opposition to arizona’s request to hear the
case, respondent gant took a slightly different tack than
did the arizona supreme Court. gant’s pleading relied
more heavily on the claim that the search of his car was
not a “contemporaneous incident” of the arrest as required in Belton.212 By framing the issue as whether a
Belton requirement of “contemporaneousness” was met,
gant gave the Court the opportunity to decide the case
without challenging Belton directly. gant agreed with
the arizona supreme Court, however, that the opinion
did not overrule or even contradict Belton and Thornton
and that it was “consistent with the constitutional principles affirmed in Chimel v. California.”213 the pleading
accused arizona of “abandon[ing] fourth amendment
protections by misapplying Chimel and Belton,”214 describing its interpretation as “fundamentally flawed.”215
he quoted Justice o’Connor’s concurrence in Thornton,
saying that exigent circumstances attendant at arrests of
recent automobile occupants “[did] not create an absolute and continuing right of law enforcement to conduct a search of the vehicle.”216
gant supported the arizona supreme Court’s
reasoning that a finding of at least one of the two Chimel
rationales was a prerequisite for searching the car at all
and that the Belton bright-line rule applied only to the
scope of the subsequent search. Under gant’s interpretation of the Belton rule, there was no threat to the safety
of the officers or the integrity of evidence in the vehicle.217
there are two possible reasons why the supreme
Court granted certiorari in the Gant case. one is that
the Court planned to reaffirm the rulings in Belton and
Thornton and noticeably correct the arizona supreme
Court for its novel and unprecedented misapplication of
Belton. the Court may have thought it necessary to
send a message, both to the arizona supreme Court and
other courts around the country that have strayed from
its teaching, and to remind them that the bright-line rule
imposed by Belton remained the law of the land. there
have been few cases other than Gant, however, in which
Criminal Law Brief
federal circuit courts or state courts of last resort have
rejected or strayed from Belton.218
another possible reason is that the Court was
willing to reconsider, or at least reexamine, its holding
in Belton, even after refusing to take such an opportunity
just four years prior when it was arguably presented in
Thornton. in light of each justice’s previously expressed
views on Belton and the concerns expressed in the oral
arguments, it was clear that there was a genuine discomfort with Belton. But while a desire to reconsider its
bright-line rule may have motivated its decision to grant
certiorari in Gant, none of the factors that are usually
present when the supreme Court grants certiorari to reconsider a well-established case were present in Gant.
there was no major split among courts considering the
issue, there had been substantial reliance on Belton, Belton had not been ignored or proven unworkable, and
there had been no subsequent supreme Court cases undermining Belton.
in its brief on the merits, petitioner arizona reiterated that Belton does not require a fact-bound assessment of either of the Chimel rationales. it went on to
argue that “searches conducted under Belton’s brightline rule are reasonable” and that such a limited search
“correctly balances the need for officer safety and evidence preservation with an arrestee’s limited privacy interest in his automobile.”219 arizona added the fanciful
argument, however, that there is in fact a reasonable
danger that gant could have escaped from the police car
and posed a threat to the officers or the evidence.220 arizona’s brief went on to argue that Belton already answered the question presented in Gant, that Thornton
recently reaffirmed this answer, and that principles of
stare decisis favored affirming it once again.221 the established rule should be affirmed because it has proven
to be “workable,” it “protects fourth amendment interests” and there is “no special justification . . . to overrule
it.”222 further, abandoning the Belton rule would pose
a “special hardship” for police officers and departments
which would be forced to develop and retrain new procedures in order to account for the ramifications of the
Gant opinion.223
gant’s brief again argued that the arizona
supreme Court did not contradict Belton or Thornton
and asserted that “all searches incident to arrest must
rest on Chimel’s twin exigency rationales” under those
cases.224 such searches include those of the arrestee’s
person as well as the area that is reasonable within reach.
the bright-line rules of Belton and Thornton delineate
the scope of the permissible search. Police may search
15
the entire passenger compartment of an automobile
nevertheless, if the justices stayed true to their
“when any part of the car is arguably within the imme- voting records in the previous related cases there apdiate control of its recent occupant.”225 in this case no peared to be a majority for reversal of the arizona
such argument can be made, gant concludes. he points supreme Court in Gant. Based on their history, Justices
out factual determinations are still required in order to Kennedy, Breyer, and thomas should have supported
determine whether the arrestee is a “recent occupant” arizona’s view of the permissibility of the search on
and whether the search is a “contemporaneous incident” stare decisis grounds, if nothing else.235 the two newest
of the arrest.226 he argues in the alternative that if the justices, Chief Justice roberts and Justice alito, had not
arizona supreme Court opinion amounted to a contra- had occasion to address the issue before Gant, but were
diction of Belton and Thornton, the Court should indeed expected to align themselves in the majority on the basis
reconsider the holdings in those cases.227 gant therefore of stare decisis.236
concluded by pointing out that searches of automobiles
Kennedy and Breyer’s questions and statements,
pursuant to arrest of a recent occupant are not per se rea- however, showed a willingness to revisit Belton’s brightline rule and its underlying rationales.237 two more jussonable.228
the oral arguments on october 7, 2008, were tices, scalia and ginsburg, were expected to concur in
lively, with many justices who were critical of Belton a judgment to reverse, but on more narrow grounds than
showing some degree of willingness to reconsider it. the government argued.238 thus, there were the seeds
reworking the relationship between
the justices peppered the three attorneys (the United states appeared as
Chimel and Belton and an announceKennedy and
ment of a new rationale for allowing
an amicus) with questions. neverBreyer’s questions Belton-style searches. there were two
theless, the government counsel
solid votes, Justice stevens and Justice
poorly handled the oral arguments.
and statements,
first, arizona and the United states
souter, for the proposition that Belton
however,
showed
a
requires, as a preliminary matter, a findwere not adequately prepared to
argue the reasonableness of the Bel- willingness to revist ing of danger to the officer or the evidence in order to conduct a search of the
ton approach under the fourth
Belton’s
bright-line
car and its containers once the arrestee
amendment’s
reasonableness
Clause. Justice scalia wanted infor- rule and its underly- is outside the car.239
the oral arguments provide furmation on the historic reasonableness
ing rationales.
ther clues to the thinking of each justice.
of the practice and neither attorney
although Chief Justice roberts was not
was prepared to provide any.229 second, the two governments also wasted a lot of time and on the Court for any of the previous relevant cases, he,
credibility on the notion that the Chimel rationales con- nevertheless, indicated his fealty to the Belton precedent
tinue to apply even when arrestees are in cuffs in the po- through his questions. he stated that the purpose of a
lice car.230 they emphasized statistics showing that bright-line rule was that “you don’t have to justify it in
suspects occasionally escape from the back of squad every particular case” and pointed out that by asking for
cars despite being handcuffed and could, therefore, ac- a case-by-case inquiry, appellees “[a]re … giving up the
tually pose a danger to the officers or evidence.231 not bright-line rule.” 240 “you don’t look at the specific
only did this waste valuable argument time, but it was facts” in such cases, he argued, that’s “[t]he whole point
also inconsistent with the crux of their argument.232 the of a bright line rule.”241 he went on to explore the ramCourt was surprised by this strategy and did not buy the ifications of eliminating the bright-line rule, posing hyargument.233 lastly, the government argued for the ap- pothetical fact situations. he asked, “[w]hat if [the
plication of Belton and Thornton when it should have arrestee] is in the back of the car but not handcuffed?”242
been putting the burden on gant to justify the arizona roberts continued by stating that “you have exactly the
court’s rejection of those precedents. in doing so, the same case-by-case inquiry that Belton said we are not
government failed to emphasize the importance of sup- going to do . . . . [i]n Thornton of course [the arrestee]
porting Belton based on the doctrine of stare decisis. it was handcuffed in the back of the police car . . . . What
could not provide the Court with the correct standard of is left of the Belton bright-line rule when you are done
special circumstances required to overturn established . . . .”243 then roberts noted that gant’s argument
precedent.234
“[a]ssum[ed Belton] was wrong . . .” and that gant was
16
Winter 2009
essentially arguing to overrule Belton’s bright-line rule
when he said “in these circumstances Belton applies,
and in these circumstances, it doesn’t.”244
Justice samuel alito was also new to the issue.
his questioning focused on two themes: stare decisis
and the difficulty of adopting a case-by-case approach.
assuming you have to overrule Belton, he asked gant,
“don’t you have to show that there are special circumstances justifying the overruling of Belton” such as that
it has been proven unworkable, that it has been undermined by subsequent cases, that lower courts have not
relied upon it, or others?245 alito offered a few hypotheticals involving the requirements of “recent occupancy” of the car and “contemporaneousness” of the
arrest to show that a case-by-case analysis could prove
problematic.246
after exploring ways to abandon the Belton rule,
while still permitting the search of the automobile on
other grounds, through impoundment, the plain view
doctrine, or pursuant to a warrant, Justice Breyer declared that he found the case “very, very difficult.”247
he was skeptical of the notion that overruling Belton
would prompt the police to intentionally place themselves in danger in order to have the authority to search.
he hinted that he would vote to uphold Belton on stare
decisis grounds in the absence of any compelling reason
to overturn it.248 Belton is not very logical, he said, but
it has been the law for almost thirty years and in the absence of a “disaster” or a “reason it is wrong” he would
not overrule an earlier case.249
Justice anthony Kennedy, as is often his practice, seemed to be looking for the middle ground. his
questioning implied that he agreed with gant, that the
Belton bright-line rule requires the support of one of the
Chimel rationales. he seemed at times to assume that
there was no bright-line rule as of yet and that petitioners were asking for one.250 yet he was unpersuaded by
arizona’s argument that there was still a danger to the
officers and a risk of destruction of evidence despite the
arrestee being handcuffed in the police car.251 he admitted frustration that arizona relied so heavily on this
argument.252 he struggled for an alternative rationale
that he could use to justify a bright-line rule and pointed
towards the car’s mobility, that cars can be stolen or
taken for joy rides, that there may be contraband or
weapons in the car and that other people could get to
them.253
no justice placed more significance on the original intent of the framers than Justice scalia. Justice
scalia was the most active member of the Court during
Criminal Law Brief
the oral arguments in Gant.254 Justice scalia had already
shown his discomfort with the Belton bright-line in his
concurrence in Thornton, in which he argued the rule in
Rabinowitz should apply to Belton searches. Justice
scalia was disappointed that none of the litigants was
able to provide him with anything to “hang [his] hat on,”
by way of evidence that the framers, or any court since
that time, had found the searches allowed under Belton
to be reasonable under the fourth amendment. 255 the
government argued that police had come to rely on Belton over the nearly three decades since it was decided.256
But scalia was more interested in a longer time frame,
going back to the framers themselves. Using the example of thomas Jefferson’s carriage, he wondered
whether the framers would have considered the Belton
rule to be reasonable under the fourth amendment.257
if so, he asserted, that would be decisive for him in the
Gant case. the litigants were unable to answer the
question of the framers’ original intent in drafting the
fourth amendment as it would relate to the reasonableness of Belton searches.258
if it is not a reasonable rule, scalia said, then
“it’s just silly. it’s . . . simply not the case . . . . i am
going to say, you know, get rid of it.”259 scalia observed
that, realistically, the officer is not at risk if the arrestee
is handcuffed in the police cruiser and the officer
searches his car.260 “[W]hat risk to the officer is being
avoided?”261 he further noted that if you remove the requirement to show a threat to officer safety, “why would
you limit the search just to the passenger compartment
of the vehicle? Why don’t you let him search the trunk,
too?”262 it is illogical to “abandon the safety requirement” and then draw the line so that police cannot
search the whole car.263
scalia again emphasized that the scope of any
search should be limited to evidence of the crime for
which the suspect is being arrested.264 if the arrest is for
speeding, he wondered, what do the police think they
will find by searching the car?265 But, of course, many
traffic arrests initially show no signs of other crimes
until searches of the person and automobile take place.
scalia’s idea to link the arrest with the search for
evidence that would support that arrest was laid out in
his concurrence in Thornton, but neither attorney for the
government seemed prepared to address scalia’s concurrence. the government should have prepared its
standard as an alternative to its main argument.
scalia foresaw that more widespread impoundment would constitute a threat to his standard and
would, as a practical matter, be the police reaction to an
17
abandonment of the Belton rule.266 But he questioned if
impoundment could always be authorized.267 Why,
asked scalia, must searches of vehicles, but not searches
of the person, be tied to the two reasons?268 Police can
search mother teresa if they arrest her, even though
there is little chance that she is carrying weapons.269
even if it is obvious that there is little to no chance of
hostility in a given situation, there are still bright-line
rules that govern the searches of persons.270 Why not
have a similar rule regarding autos as well?271
Justice ginsburg joined scalia’s Thornton concurrence, approving of searches for evidence of the
crime for which the suspect is being arrested. Belton,
she observed, was concerned with weapons and “grab
areas.”272 also, she inquired about impoundment and
subsequent inventory searches.273 she relied on Chambers to draw the line at warrantless station-house impoundment searches as unreasonable and asked whether
the facts in Gant were analogous to that situation.274
“[W]hat happens to the car?” she asked.275 Under what
circumstances could the police impound and search the
car? here the car was on a private driveway.276 Could
police still have impounded and done an inventory
search?277 she astutely took issue with the arizona
supreme Court’s reasoning that it was not overruling
Belton, but merely putting the bright-line rule in context.278 following such reasoning would lead to no
bright-line rules.
Justice stevens, as mentioned above, concurred
in Belton but dissented in Thornton. During oral arguments, he seemed to argue that the traditional automobile exception to the warrant requirement could control
these cases.279 Under the exception, police are entitled
to search an automobile when they have probable cause
to believe it contains contraband, along with any containers reasonably expected to contain such evidence.280
Why should other cases allow for more extensive
searches on less than probable cause?
he reminded the litigants that in Belton, the suspects were not under the sort of control that they were
in Thornton and in Gant.281 therefore, he reasoned, arizona and the United states were actually asking for
more than the Court gave in Belton—an “expanded Belton.”282 there is very little danger to the officers here;
police just “want the ability to search the vehicle.”283
stevens hinted that he would not be inclined to
join the scalia-ginsburg analysis allowing searches for
evidence of the crime in question. taking issue with the
scalia-ginsburg rationale, he said the scalia-ginsburg
analysis should only control when there is probable
18
cause to believe there is some evidence in the vehicle.284
Justice souter joined Justice stevens by dissenting in Thornton. like Justice stevens, Justice souter
was a solid vote for gant. he was sympathetic to gant’s
view of Belton as being linked to the Chimel rule of an
area within the suspect’s “immediate control” and at
least one of its rationales. the government’s view,
souter stated, divorces the search completely from the
Chimel rule and concluded that Belton’s bright-line is
dependent upon the presence of one of the two underlying rationales.285 so either we declare it is no longer a
Chimel rule or if we say it applies in a case like this, it
is “nonsense.”286 the choice, he said, was between applying a new and different rule or applying Chimel.287
responding to the government’s main argument
about the continued existence of the Chimel factors,
souter asked whether in escape cases an officer was ever
injured.288 Did the arrestee “make a beeline — for his
own car?”289 are there any examples “where the arrestee went back to his own car and tried to get a gun to
hurt a police officer?”290 Was the arrestee handcuffed?291
Could he still drive the car?292 souter assumed that no
search of the car is permissible on an incident to arrest
theory if the arrestee is in the station house.293 “Why
isn’t it equally workable to say when the [arrestee] is
handcuffed and put in the back of a cruiser, they can’t
do it?” 294
POSSiBle hOlDinGS295
in our view, the U.s. supreme Court had five
possible options for its holding in Gant:
1. Stare Decisis: reaffirm Belton’s result and
rationale.
the Court could have maintained the bright-line
rule that the police may search the entire passenger
compartment of an automobile, including the glove
compartment, as well as any container therein, contemporaneous to an arrest of a recent occupant of that vehicle. the trick would be how to reconcile the ruling with
the obsolete Belton rationale that arrestees will, more
often than not, have access to the compartment and thus
endanger the safety of the officer and integrity of evidence. instead, the importance of a bright-line rule and
the maintenance of a widely used and easily applied
standard must be emphasized.
the Court could have instructed the arizona
supreme Court and other lower courts that the brightWinter 2009
another approach could have been to develop a
line rule of Belton, as would be reaffirmed in Gant, does
not require specific factual findings of either actual risk new standard based on the twin factors in Chimel. for
that the police officer(s) may be in danger of harm or example, the police may search the interior passenger
destruction or alteration of evidence as a threshold issue compartment of an automobile, and any containers
to conducting a search of the automobile. the bright therein, up until the moment that all recent occupants
line is drawn by virtue of the arrest itself, defining the of an automobile are safely in custody and the automoscope of the permissible search as including the passen- bile is secured.
in other words, it could be lawful to search the
ger compartment and any containers within it. such a
search is subject only to the limitations that the arrest interior compartment of an automobile and any containmust be of “recent occupants” of the car and “contem- ers therein, without a warrant, if the government can
poraneous” to the search as defined by the applicable show that one or more recent occupants or other persons
posed an actual danger to the officers’ safety or to the
body of case law.
this option would have constituted no change integrity of any evidence. evidence that the suspects
in the way practitioners have dealt with these issues. were safely under arrest or within the control of the pothe ability to search and the scope thereof would re- lice, or that no one else had access to the car would unmain the same, as would the possibility of litigation re- dermine any ability to establish such dangers.
rebuttable presumptions could
garding the recent occupancy of the
be imposed against either the
vehicle and the contemporaneity of
The
trick
would
be
how
defense or the government.
the search.
this
standard
to reconcile the ruling
would address the issue in
2. redraw and redefine the Bright
with
the
obsolete
Belton
line.
Gant and accord with the unUnder this approach the
rationale that arrestees derlying rationale that there is
a special danger of harm
Court would have specified the prewill, more often than
and/or destruction of evidence
cise facts that would constitute the
location of the line determining
not, have access to the from occupants of automobiles. this, of course, would
whether police can conduct a search.
compartment and thus have required additional litigaone example is in the facts of Gant
itself: when the suspect is in handendanger the safety of tion and fact-finding on the
difficult issue of what circumcuffs and in the patrol car. the line
could be re-drawn in any number of the officer and integrity stances present a danger to the
officer or evidence. it is possiother places and ways, considering
of evidence.
ble, but unlikely, that police
factors such as: when the suspects
would purposely manage the
are under arrest, when they are in
the squad car, when they are handcuffed, or when they arrest scene to maintain threats to themselves or the evare removed from the car. the number of police officers idence in order to justify a search of the car.
Certain basic fact situations would present, howpresent must also affect the rules.
the Court could have avoided overruling Belton ever, some compelling conclusions that may require a
by finding that police procedures developed in response bright-line rule nonetheless. Would courts find, for exto Belton undermined the Court’s assumptions of the ample, that the existence of just one police officer crecircumstances of these searches and now require fine- ates a per se danger unless the arrestee or arrestees are
handcuffed and secured in a police cruiser? in such a
tuning of the placement of the line.
this option likely would have created the awk- situation, an arrestee might run or attack the officer even
ward situation of lines being drawn in different places if handcuffed. With this option, police may respond by
under different circumstances. it would have changed developing procedures such that after the arrestee and
how practitioners litigate the issues by requiring a find- the car are secured, they may search the car either
ing of whether any of the new factors permitting a through impoundment or pursuant to a search warrant.
it would be hard to imagine how the Court could
search were present in a given case.
have adopted this approach without overruling Belton
by finding the special circumstances usually required
3. a Chimel-based standard.
Criminal Law Brief
19
by a departure from stare decisis. this approach could
also serve to undermine the “search incident to arrest of
a person” doctrine under Robinson and perhaps require
or lead to its modification as well. rather than always
allowing a full search of the person contemporaneous
to an arrest, a new rule in Gant could presuppose that
such searches require a showing that the suspect posed
an actual risk of harm to the officer or destruction of evidence. in most cases, the warrantless search incident
to a lawful arrest would be upheld but not before additional litigation of the facts of each arrest.
4. evidence of the Crime.
another possible approach is to adopt the novel
scalia-ginsburg approach that a car search for evidence
of the crime for which the arrest is being made would
be reasonable under the fourth amendment. this
would open a whole new area of litigation, fact-finding,
and appellate case law as courts struggled with how to
define the permissible scope of such searches. some of
the questions and issues the courts will face include: for
what crimes is the suspect arrested? What happens
when multiple suspects are arrested for different offenses? What sort of evidence is relevant to what sorts
of crimes, for example: is a gun evidence of the crime
of drug possession and vice versa? is marijuana evidence of driving under the influence? if the arrest is for
a weapons offense, what is relevant evidence? Would
any search ever be permissible pursuant to arrests for
traffic offenses? if not, would that not potentially put
officers in danger of weapons in the car, for example?
Could more complete searches still be conducted if either of the Chimel rationales were present? Where in
the car can be searched? is the scope governed by the
likelihood of relevant evidence being found? What
about containers?
5. other means to the end: Warrants Based Upon Pro
bable Cause or other exceptions
the final alternative would be to abolish any exception to the warrant clause beyond that involving the
immediate area of control as determined by a Chimel
analysis, and treat recent occupants of cars no differently than pedestrians or recent occupants of homes.
thus, in order to search the passenger compartment and
any containers therein, the police would need to obtain
a warrant based on probable cause as argued by stevens
and souter. Police could also attempt to justify a search
under some other exception to the warrant requirement.
impoundment would become a regular tactic utilized by
20
the police and one that would, ironically, constitute a
greater intrusion upon the owner and driver of the car
than would a search at the scene.
it is well established that the Court is free to do
as it pleases, as long as it has five votes. given the options above and what occurred during the oral arguments, the Court could have found support for several
outcomes. Chief Justice roberts, along with Justices
alito, thomas, and perhaps Breyer, could have found
support for option number one, ruling that stare decisis
reverses the arizona supreme Court decision. also,
there could have been two votes—Justices stevens and
souter—for the warrant-based rule noted in option
five.296 Justices scalia and ginsburg would again propose their “related evidence” rule but might not attract
any other votes, much less the three more required for a
majority opinion. as they did in Thornton, however,
these two justices would have likely concurred in the
judgment of at least a stare decisis majority opinion.
as is so often the case, the most important justice might have been Justice Kennedy. Judging from his
questions and comments during the oral argument,
Kennedy may have based the validity of the search on
grounds other than Belton’s familiar bright-line rule.
Justice Breyer confessed discomfort with Belton and indicated his preference for stare decisis.
The SuPreMe COurT’S rulinG
two months before the end of its 2008–2009
term, the United states supreme Court issued its opinion
in the Gant case. in a 5-4 opinion penned by Justice
stevens, the Court affirmed the holding of the arizona
supreme Court ruling that the evidence seized from respondent’s car was inadmissible.297 the Court held that
the Constitution permitted police to search the passenger
compartment of a vehicle incident to a recent occupant’s
arrest only if it is reasonable to believe that the arrestee
might have access to the vehicle at the time of the
search.298 it also created, in a transparent effort to fashion a majority, a wholly new rule for application in such
cases, holding that such a search may also constitutionally take place if there is reason to believe that the vehicle contains evidence of the offense of arrest.299 finding
neither condition present in the facts of Gant, the Court
held the search to be unreasonable.300
the Court shed light on its reasons for granting
certiorari in this case citing a “chorus” of courts, scholars, and justices who questioned the clarity of Belton as
well as its fidelity to the fourth amendment.301 in doing
Winter 2009
so, the Court turned a deaf ear to the much louder choir
of consistent conformity to the plain rule in Belton.
Understandably in light of its ruling, the Court
relied heavily on the holding in Chimel and was reminded that the exception to the fourth amendment’s
warrant requirement of a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or
destructible evidence.”302 if there is no possibility that
an arrestee can reach into the area that the police seek
to search, the two possible justifications for the exception are absent. this reasoning, the Court explained, assures that the scope of the search incident to the arrest
is “commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense” that could be concealed or destroyed.303
applying the Chimel exception to the automobile context, Belton, the Court continued, held that
“when an officer lawfully arrests ‘the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile’ and any containers therein.”304 the justifications of the Chimel warrant exception, said the Gant
Court, apply only when there is a reasonable possibility
of the arrestee gaining access to a weapon or to evidence
in the car.305 the holding in Belton was based in large
part, the Court said, on the assumption that articles inside the passenger compartment “are in fact generally,
even if not inevitably, within ‘the area into which an arrestee might reach.’”306
Unabashedly seeking to avoid overruling Belton,
the Court rejected the almost universal notion that it had
established a bright-line rule in such cases. accordingly,
the Court refused to acknowledge that Belton directly
required courts to admit evidence seized from the passenger compartment upon the arrest of recent occupants
of vehicles.307 rather Belton, the Court claimed, has
been widely, though exaggeratedly, read as allowing the
search of the passenger compartment “even if there is
no possibility the arrestee could gain access to the vehicle at the time of the search.”308 the Court attributed
this reading to Justice Brennan’s allegedly hyperbolic
dissent in Belton warning that the majority’s holding in
that case rested on “the ‘fiction . . . that the interior of a
car is always within the immediate control of the arrestee’” and that the search would have been upheld
“even if [the officer] had handcuffed Belton and his
companions in the patrol car’ before conducting the
search.”309 the Court acknowledged that cases in which
the searches have been upheld in “this precise factual
Criminal Law Brief
scenario . . . are legion.”310 these cases, the Court admitted, include ones in which the handcuffed arrestee
has already left the scene entirely.311
the Gant Court, disingenuously in our view,
called this common application a “broad reading of Belton,” one which would “untether the rule from the justifications underlying the Chimel exception.”312 the
Court accordingly rejected this “broad reading” ostensibly without overruling that case. it held that “the
Chimel rationale authorizes police to search a vehicle
incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search.”313 a
search of a vehicle incident to a recent occupant’s arrest
is unconstitutional, the Court held, if there was no possibility of the arrestee gaining access to the interior compartment of the vehicle at the time of the search.314
in an effort to distinguish, rather than overrule
Belton, the Court relied heavily on the factual differences between Belton and Gant. in Belton, one police
officer—presumably in possession of one pair of handcuffs—was confronted with four unsecured arrestees at
the time of his search of the vehicle.315 in Gant, however, a total of five police officers handcuffed and secured in a patrol car the lone arrestee, who had recently
occupied the vehicle, and two other suspects.316 the
Court presumed that while Belton may have been able
to access the passenger compartment, gant, on the other
hand, could not have gained access to his car at the time
of the search.
By so ruling, the Court has left unscathed the result in Belton under the facts present in that case. the
Court seemingly fails to realize that these two factual
scenarios represent the polar extremes of a large spectrum of real world possibilities. inexplicably, however,
the Court concluded that it will be “the rare case” in
which an officer is unable to fully effectuate an arrest
so that a real possibility of access to the arrestee’s vehicle remains.317 the Court then foreshadows, without so
acknowledging, the extensive litigation to come over the
factual issue of whether arrestees have a possibility of
access to the passenger compartment.318 it also gives no
weight to subsequent efforts by law enforcement to develop and employ strategies to permit searches of the
passenger compartment by leaving a suspect or suspects
arguably within reach of it.
accordingly, the Court’s ruling leaves many
questions unanswered that criminal justice practitioners
will have to address. is the ruling in Belton essentially
limited to its specific facts? Does Gant apply only to the
21
situation in which the arrestee is handcuffed and in a pa- there will be reason to believe that the passenger comtrol car? What if the suspect is handcuffed but otherwise partment may contain evidence of the arresting offense
unsecured? What if no handcuffs have been applied but and in others it would not.323 the Court, however, gives
the suspects are placed up against the car or lying on the no guidance except that it holds that in Gant there is no
ground? What if one or more suspects are just steps reason to so believe—a conclusion with which we take
away from the car? must the suspects be as close as exception—the car could contain evidence of the crime
within arm’s length of the car to invoke Belton? how of driving with a suspended license. it is reasonable,
do glove compartments fit in? the Court clearly fails however, to believe that the license itself, the car registo recognize the extent of the confusion and the subse- tration, or other evidence supporting the charge could
quent litigation it has created by rejecting the bright-line have been found in the glove compartment or other parts
of the vehicle’s interior. again, the Court fails to recrule of Belton.
Gant is also silent as to the treatment of contain- ognize the consequences of the creation of this new exers within the passenger compartment. if suspects rea- ception. in short, in the majority opinion rejects what
sonably have access to the interior compartments of was an understandable, easily applicable bright-line
vehicles, do they automatically also have access to con- rule, replacing it with a two-part Chimel-centric analyttainers located within the compartment? the bright-line ical framework that will lead to extensive litigation.
Justice scalia’s conreading of Belton extended to any
curring opinion is a fascicontainers within the vehicle as well The Court...holds that in
nating exercise in judicial
as to the passenger compartment itself. there were no containers in- Gant there is no reason to obfuscation in which he unvolved in Gant and the ruling gives
so beleive...[that] the car abashedly announces that
he is joining the Court’s
courts no guidance about how it
should be applied in cases where con- could contain evidence of opinion despite his distents of a container are at issue. must
the crime of suspended agreement with half of it.
he enthusiastically emthe arrestee independently have realicense. It is reasonable, braces that part of the masonable access to the container?
opinion
that
Does it matter where the container is
however, to believe that jority
establishes the “evidence of
within the car? Does the kind of conthe license itself, the car the crime” rationale for pertainer affect the result? are containers that are more easily opened more registration, or other evi- mitting vehicle searches.
he does not, however,
likely to be accessible to the arrestee
dence
supporting
the
agree with the majority’s
than other more difficult to open conendorsement of a revived,
tainers? Will the answers to these
charge
could
have
been
questions have to await yet another
post-Belton application of
found in the glove
case?
Chimel. scalia writes that
Justice stevens’ opinion
surprisingly and without juscompartment.
“would retain the applicatification in our view, the Court then
goes on to carve out an additional extion of Chimel in the car
ception to the limitations of Chimel. this part of the search context but would apply in the future what he beruling is an audacious way to attract the vote of Justice lieves our cases held in the past: that officers making a
scalia and put together a majority of five votes. adopt- roadside stop may search the vehicle as long as the ‘aring Justice scalia’s concurrence in Thornton,319 the restee is within reaching distance of the passenger comCourt held that “circumstances unique to the vehicle jus- partment at the time of the search.’”324 he takes issue
tify a search incident to a lawful arrest when it is ‘rea- with this ruling, explaining that “this standard fails to
sonable to believe [that] evidence relevant to the crime provide the needed guidance to arresting officers and
of arrest might be found in the vehicle.’”320 the Court also leaves much room for manipulation, inviting offirecognizes that this new rule “does not follow from cers to leave the scene unsecured . . . in order to conduct
Chimel.”321 moreover, it does nothing to identify the a vehicle search.”325 he would “simply abandon” what
“circumstances unique to the vehicle context” that jus- he calls “the Belton-Thornton charade” and overrule
tify the new exception.322 it observes that in some cases those cases outright and simply adopt his “evidence of
22
Winter 2009
the crime” standard.326
Despite these views, he goes on to join the opinion of the Court. he acknowledges that no other Justice
shares his view about abandoning the application of
Chimel in these cases.327 But he finds it “unacceptable”
for the Court to issue a 4-1-4 opinion that would “leave[]
the governing rule uncertain.”328 he then asserts that
Belton and Thornton constituted a bright-line rule, albeit
one that endorses cases he considers unconstitutional,
and that the Court’s opinion is an “artificial narrowing
of those cases.”329 he joins the Court, not because he
agrees with it, but because he considers allowing the
bright-line rule to stand is the “greater evil.”330
in his dissent, Justice alito’s shares our view that
the Court, without so admitting, “effectively overrules
[Belton and Thornton] even though respondent gant has
not asked [the Court] to do so.”331 Despite the majority’s
refusal “to acknowledge that it is overruling Belton and
Thornton,” alito concludes, “there can be no doubt that
it does so.”332 alito believes that the majority’s overruling of Belton departs from the usual rule of stare decisis
without sufficient justification for doing so as required
by that doctrine.333 he argues that the case presents none
of the “special justification[s]” necessary for the Court’s
departure from a constitutional precedent.334 Justice
alito also takes issue with the “evidence of the crime”
basis for the search by questioning the standard of “reason to believe.”335
as expected, Chief Justice roberts and Justices
Kennedy and Breyer agree that Belton should be reaffirmed on stare decisis grounds. Justice Breyer writes
in dissent that Belton did indeed create a bright-line rule;
one which he believes sometimes leads to unconstitutional results.336 nevertheless, he says, there are no
grounds upon which to abandon the well-established
precedent that Belton represents.337 Proponents of doing
so have failed to meet their “heavy burden” for overturning a ruling on which there has been, as here, “considerable reliance.”338
The SuPreMe COurT’S rulinG
so, what about Justice scalia and the case of
thomas Jefferson’s carriage? What would the framers
have expected in the future President’s situation and
how would that apply to the one in which gant and the
arresting officers found themselves?
in order to determine what is and is not “reasonable” under the fourth amendment, Justice scalia always begins by looking to “the historical practices the
Criminal Law Brief
framers sought to preserve.”339 he must have been frustrated in this case because the framers’ practices failed
to provide adequate guidance for how to rule. he could
not determine, and the litigants could not help him, what
James madison, John adams, and the other framers
would have believed to be reasonable. he was determined that because the “historical scope of officers’ authority to search vehicles incident to arrest is uncertain,
traditional standards of reasonableness govern.”340
those standards, he concluded, do not justify the Belton
bright-line rule.341 as we saw, however, the Justices, all
reasonable people, did not come to exactly the same
conclusion on what the standard for such searches
should be.
of one thing we can be sure: by its ruling in Arizona v. Gant, the supreme Court has completely reopened an area of constitutional criminal procedure that
had been settled for nearly three decades. in doing so,
it has released from Pandora’s Box what will be a deluge
of litigation as police, prosecutors, defense counsel, and
trial and appellate courts—including the high court itself—are compelled to grapple with the new standards.
it is precisely cases like Gant that explain the allure of the doctrine of stare decisis. it makes one long,
along with Justice scalia, for the simplicity of the 18th
century and the elusive wisdom of the case of thomas
Jefferson’s carriage.
1
andrew fois is a former federal prosecutor and assistant attorney general teaching Criminal Procedure at the georgetown University law
Center at which lauren simmons is a third-year law student.
2
129 s. Ct. 1710 (2009).
3
453 U.s. 454 (1981).
4
See transcript of oral argument at 7, arizona v. gant, 538 U.s. 976
(no. 07-542) (U.s. oct. 7, 2008), 2008 Wl 4527980 [hereinafter Gant
Transcript].
5
Id.
6
Belton, 453 U.s. at 8.
7
See id.
8
the fourth amendment to the United states Constitution reads as follows:
the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person
or things to be seized.
U.s. Const. amend. iv.
in Terry v. Ohio, the United states supreme Court emphasized the importance of this right by reiterating that “[n]o right is held more sacred . .
. than the right of every individual to the possession and control of his
own person, free from all restraint or interference of others, unless by
23
clear and unquestionable authority of law.” 392 U.s. 1, 9 (1968). as
originally included in the Bill of rights, the protections of the fourth
amendment applied only to actions by the federal government. Pursuant
to the Due Process clause of the fourteenth amendment, the fourth
amendment was incorporated and applied to actions taken by state governments in 1961 in Mapp v. Ohio, 367 U.s. 643 (1961).
for most of its history, the supreme Court read the fourth
amendment to require a warrant supported by probable cause for all
searches and seizures of places, persons and things. its long held position had been that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable
under the fourth amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United states, 389 U.s.
347, 357 (1967). the Court recognized “jealously guarded” exceptions
to the Warrant Clause that it declared to be constitutionally permissible
under the reasonableness Clause. one of those exceptions is the constitutionally based “search incident to lawful arrest” doctrine. See generally Chimel v. California, 395 U.s. 752 (1969). the warrant requirement
has eroded to the extent that many believe it has been virtually abandoned and fourth amendment analysis turned on its head. in California
v. Acevedo, Justice antonin scalia points to the rise of the reasonableness Clause in asserting that the warrant requirement has become so
“riddled with exceptions that it [is] basically unrecognizable.” 500 U.s.
565, 582 (1991) (scalia, J., concurring). reasonableness has become the
“touchstone of the fourth amendment.” United states v. Knights, 534
U.s. 112, 118 (2001).
9
395 U.s. 752 (1969).
10
Id. at 754.
11
See id. at 753–55.
12
Id. at 755. See, e.g., Weeks v. United states, 232 U.s. 383, 392 (1914)
(affirming the right of law enforcement to confiscate any evidence on the
person of an individual lawfully arrested); Carroll v. United states, 267
U.s. 132, 158 (1925) (holding that anything unlawful found upon lawful
arrestee’s person or in his control may be seized); agnello v. United
states, 269 U.s. 20, 30 (1925) (setting forth dictum expanding search incident to arrest notion to include the entire location where the arrest is
made); marron v. United states, 275 U.s. 192, 199 (1927) (holding that
because officers made a lawful arrest, they had the right to contemporaneously search without a warrant any part of the arrestee’s property used
in the illegal activity); go-Bart importing Co. v. United states, 282 U.s.
344, 358 (1931) (distinguishing from the facts in Marron and holding instant search unlawful because the search was conducted in conjunction
with an obviously invalid arrest); United states v. leftkowitz, 285 U.s.
452, 461 (1932) (invalidating a search even though it had accompanied a
lawful arrest because the search was general and exploratory rather than
one targeted at evidence of and invited by the criminal activity for which
the accused was arrested); harris v. United states, 331 U.s. 145, 153
(1947) (sustaining a broad search of the home incident to arrest in order
to uncover evidence of the crime for which the accused was arrested);
trupiano v. United states, 334 U.s. 699, 705, 708 (1948) (holding that
search incident to lawful arrest is to be used sparingly and is justified by
the necessities of the circumstances and that the instant search was invalid because agents had opportunity to obtain a search warrant prior to
the search but failed to do so); United states v. rabinowitz, 339 U.s. 56,
58, 59, 61 (1950) (rejecting Trupiano rule and upholding the warrantless
search incident to lawful arrest for evidence of the type consistent with
the crime for which the accused was arrested, not just items of evidence
enumerated in the arrest warrant).
13
Rabinowitz, 339 U.s. at 63, 64; Chimel, 395 U.s. at 760.
14
Rabinowitz, 339 U.s. at 75, 78
24
Chimel, 395 U.s. at 760.
Id. at 763.
17
Id. at 762–63.
18
See id. at 763 (explaining that the scope of a search of an area “must,
of course, be governed by a like rule”).
19
Id. at 763.
20
Id. (emphasis added).
21
See id. at 766–68.
22
See, e.g., United states v. Perea, 986 f.2d 633, 643 (2d Cir. 1993)
(holding that a search of arrestee’s duffle bag found in the trunk of the
taxi cab in which arrestee was riding was not justified under the arrest
power); Davis v. robbs, 794 f.2d 1129, 1131 (6th Cir. 1986) (upholding
seizure of a rifle that was in close proximity to the arrestee at the time of
the arrest but not at the time of the seizure); United states v. sanders,
631 f.2d 1309, 1313 (8th Cir. 1980) (finding that in the course of a
search incident to arrest, police may retrieve evidence from the floorboard of an automobile after arrestees are no longer in it); United states
v. Dixon, 558 f.2d 919, 922 (9th Cir. 1977) (upholding the seizure of a
bag from the interior of a car and the contents within the bag after arrestee has been removed from the car); United states v. frick, 490 f.2d
666, 669 (5th Cir. 1973) (affirming the seizure of an attaché case from
the interior of a car after the arrestee has been removed because of exigent circumstances created by the mobile nature of the evidence, the possibility of an unknown accomplice or dangerous weapon, and the
likelihood that the arrestee would soon be released from custody). But
see, e.g., United states v. Benson, 631 f.2d 1336, 1340 (8th Cir. 1980)
(holding that a warrantless search of a tote bag was constitutionally invalid because there were no exigent circumstances that justified opening
a bag already in police custody); United states v. rigales, 630 f.2d 364,
367 (5th Cir. 1980) (stating that a warrantless search of the contents of a
closed container seized in conjunction with a lawful automobile arrest
was only justified by the presence of exigent circumstances); hinkel v.
anchorage, 618 P.2d 1069, 1071 (alaska 1980) (asserting that a warrantless search of a purse in arrestee’s vehicle was lawful because the item
was immediately associated with the person); Ulesky v. state, 379 so. 2d
121, 126 (fla. app. 1979) (declaring that a search of purse was not justified as search incident to arrest because it was not located on arrestee’s
person or in the area within her immediate control at the time of the
search).
the supreme Court also revisited the issue several times. See,
e.g., maryland v. Buie, 494 U.s. 325, 327 (1990) (holding a protective
sweep may be justified by reasonable suspicion “that the area swept harbored an individual posing a danger to the officer or others”); Washington v. Chrisman, 455 U.s. 1, 6 (1982) (arguing that “the absence of an
affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s
authority to maintain custody over the arrested person” and conduct an
automatic search within the grab area); vale v. louisiana, 399 U.s. 30,
35 (1970) (stating that the warrantless search violated the fourth amendment because the state did not meet its burden of showing exigent circumstances because the goods ultimately seized were not in the process
of destruction); Chambers v. maroney, 399 U.s. 42, 47 (1970) (finding
that “once an accused is under arrest and in custody, then a search made
at another place, without a warrant, is simply not incident to the arrest”).
23
415 U.s. 800 (1974).
24
See id. at 807–08 (holding that edwards, who was arrested for attempted burglary and jailed at about midnight, could be legally searched
incident to that arrest the next morning).
25
Id. at 803–04.
26
414 U.s. 218 (1973).
15
16
Winter 2009
See id. at 236 (holding that the police officer had a right to search and
seize heroin capsules discovered in the course of a lawful search as evidence of criminal conduct).
28
Id. at 220.
29
Id. at 223.
30
See id. at 219, 236.
31
Id. at 224 (emphasis in original).
32
the cases make clear that the authority to search the arrestee’s person
is “affirmative” and “unqualified” making such searches not only an exception to the warrant requirement, but also reasonable under the fourth
amendment. Id. at 225–226. moreover, the authority to search the arrestee’s person included authority to seize and search any packages or
containers found on his person as an old cigarette package in robinson’s
pocket was found to contain heroin capsules. Id. at 236.
33
Id. at 224.
34
Id. at 227.
35
See id.
36
Id. at 235.
37
Id. (emphasis added).
38
Id.
39
See id. at 237 (Powell, J., concurring).
40
stePhen a. saltZBUrg & Daniel J. CaPra, ameriCan Criminal ProCeDUre 311 (8th ed. 2007).
41
See, e.g., United states v. Chadwick, 433 U.s. 1, 16 n.10 (1977) (distinguishing Robinson’s automatic search rule because “[u]nlike searches
of the person, searches of possessions within an arrestee’s immediate
control cannot be justified by any reduced expectations of privacy
caused by the arrest”); United states v. gorski, 852 f.2d 692 (2d Cir.
1988) (requiring that exigent circumstances are necessary to justify
search of bag during arrest). But see, e.g., United states v. morales, 923
f.2d 621 (8th Cir. 1991) (upholding search of defendant’s luggage as incident to arrest power because arrestee was holding bags when approached by officers, three feet away from bags when searched and not
handcuffed; and distinguishing the search in Chadwick as occurring too
long after arrest); United states v. herrera, 810 f.2d 989 (10th Cir. 1987)
(upholding search of arrestee’s briefcase as incident to arrest). Whether
the search precedes or follows the arrest does not affect the lawfulness of
the search. rawlings v. Kentucky, 448 U.s. 98 (1980). Police have the
authority to order an arrestee to move about a considerable area while
still permitting a Chimel search incident to arrest within all the areas so
moved into, even without any fear of the safety of the officer or risk of
destruction of evidence. Washington v. Chrisman, 455 U.s. 1 (1982). a
“protective sweep” of a much larger area than Chimel’s area of immediate control is reasonable for the sake of the officer’s safety. maryland v.
Buie, 494 U.s. 325 (1990). But police may not constitutionally search
an impounded car on a search incident to arrest theory after both the car
and the arrestee have been moved to the stationhouse. Chambers v.
maroney, 399 U.s. 42 (1970).
42
Belton, 453 U.s at 454.
43
Id. at 455.
44
Id.
45
Id. at 456.
46
Id.
47
Belton, 453 U.s at 456.
48
Id.
49
Id.
50
Id.
51
Id.
52
Belton, 453 U.s at 456.
53
Id.
27
Criminal Law Brief
Id.
Id.
56
Id.
57
Id.; see also People v. Belton, 407 n.e.2d 420, 421 (n.y. 1980), rev’d,
453 U.s. 454 (1981).
58
Belton, 453 U.s. at 456; Belton, 407 n.e.2d at 421.
59
Belton, 453 U.s. at 455 (emphasis added).
60
Chimel, 395 U.s. at 763.
61
the choice of the word “arguably” suggests that the Court is not requiring that the interior of the automobile actually is, in fact, “within the
immediate control” of the vehicle’s recent occupant but only that it be
“arguably” within his or her immediate control.
62
Belton, 453 U.s. at 460.
63
See id.
64
Id. at 459.
65
Id.
66
Belton presented no issue of the legality of the search of respondent’s
person or those of the other three automobile occupants.
67
Belton, 453 U.s. at 460. footnote 3 of Belton emphasizes that its
holding is limited to those special circumstances when an arrest is
made “in this particular and problematic context” and does not change
Chimel’s fundamental principles regarding the scope of other searches
incident to arrest. Id. at 460 n.3. this disclaimer provides further evidence of the Court’s intention to carve out a bright-line rule for automobile arrests independent of the need for a showing of the rationales
underpinning Chimel.
68
Id. at 456.
69
the Court defines “container” broadly as “any object capable of holding another object,” id. at 461 n.4, and specifically authorizes the search
of a container whether it is open or closed. Id. at 461. it went on to dismiss the notion, put forth by the D.C. Circuit in Robinson, that the extent
of a search of a container must be defined by the likelihood of it holding
a weapon or evidence of the crime for which the person is being taken
into custody. Id. at 461. that provides further evidence that the Court is
not limiting the scope of the searches to those specifically consistent
with their underlying rationale. See Robinson, 414 U.s. at 235 (noting
that “[t]he authority to search the person incident to a lawful custodial
arrest, while based upon the need to disarm and to discover evidence,
does not depend on what a court may later decide was the probability in
a particular arrest situation that weapons or evidence would in fact be
found upon the person of the suspect.”).
70
Belton, 453 U.s. at 460.
71
Justice Brennan’s dissent in Belton, in which he was joined by Justice
marshall, reluctantly acknowledges that the rule established by the majority constitutes a “bright-line” but implies that it may fade under the
brighter light of future cases. Id. at 463–64. he opines that the search of
the car would have been allowed by the majority even in the situation in
which the suspects had been handcuffed and safely placed in the patrol
car before it was conducted. See Id. at 468. Despite that recognition,
Brennan proceeds to list a number of possible factual scenarios which he
claims are not encompassed by the new rule. his strongest arguments
relate to the temporal proximity of the search to the arrest, although that
issue may be controlled by United States v. Edwards, 415 U.s. 800, 807–
08 (1974). many of his other hypothetical facts indicate a less than careful reading of the majority opinion. for example, he poses the questions
whether the interior includes locked glove compartments, whether there
are special rules for hatchbacks, and whether only containers large
enough to be “capable of holding another object” are covered by the
holding. Belton, 453 U.s. at 470. ironically, Brennan expresses his continued support of the Chimel standard and then rattles off an at least
54
55
25
equally complicated list of factors that he would use to determine the
issue of the arrestee’s area of “immediate control.” these factors include: “relative number of police officers and arrestees, the manner of
restraint placed on the arrestee, and the ability of the arrestee to gain access to a particular area or container.” Id. at 471.
72
saltZBUrg & CaPra, supra note 40, at 314.
73
Belton, 453 U.s. at 460.
74
for examples of cases interpreting “recent occupant,” see United
states v. gordon, 264 f. app’x 274, 276 (4th Cir. 2008) (holding that arrestee, who was standing two or three feet from his vehicle after having
just retrieved a letter from the vehicle that formed the basis for his arrest,
was a “recent occupant”); United states v. Palmer, 206 f. app’x 357,
359 (5th Cir. 2006) (interpreting the “recent occupant” requirement put
forth in thornton v. United states, 541 U.s. 615 (2004), as not resting on
where an officer makes contact with a person regardless of whether it
was inside or outside a vehicle; the defendant parked his truck on the
side of the road and the officers initiated contact with him while he and
his companion exited the vehicle); United states v. Jones, 155 f. app’x
204, 208 (6th Cir. 2005) (“although an arrestee’s status as a ‘recent occupant’ may depend on ‘his temporal or spatial relationship to the car at
the time of the arrest and search,’ it does not require that he be within
reach of the automobile.”) (citations omitted); United states v. osife,
398 f.3d 1143, 1148 (9th Cir. 2005) (articulating that the fourth amendment permits police to search an automobile after arresting its recent occupant, even when evidence related to the crime is unlikely to be found;
defendant was determined to be a recent occupant after he got out of his
truck, urinated on the ground, walked into the store, walked back outside, and was standing next to the open driver’s side door of his truck
when the officers made contact with him. also, defendant was handcuffed and inside the patrol car when the officer searched the truck);
United states v. Bush, 404 f.3d 263, 275 (4th Cir. 2005) (applying the
logic of Thornton, the court held that because the officers saw the arrestee exit the vehicle and arrested her when she was in the process of
reentering her vehicle, the officers were permitted to search the vehicle
incident to arrest); United states v. herndon, 393 f.3d 665, 668 (6th Cir.
2005) (vacated on other grounds) (articulating that the defendant standing five feet away from the vehicle while the driver’s door was open was
a recent occupant); United states v. sumrall, 115 f. app’x 22, 26–27
(10th Cir. 2004) (holding that the arrestee, who was followed by police
for five or six blocks but met by police outside of the car after locking
the driver’s side door, was a “recent occupant”); United states v.
Poggemiller, 375 f.3d 686, 688 (8th Cir. 2004) (arguing that the defendant was a recent occupant even though the police initiated contact when
the defendant was standing 10 feet away from his vehicle); United states
v. Deans, 549 f. supp. 2d 1085, 1093 (D. minn. 2008) (upholding the
search under Thornton because where, as here, the law enforcement officials were engaged in an drug deal investigation and the suspected drug
dealer drove his vehicle to the predetermined site of the transaction, it is
reasonable to conclude the suspect might have further quantities of drugs
left in the vehicle even though he left the vehicle to conduct the transaction elsewhere). See also United states v. laughton, 437 f. supp. 2d
665, 673 (e.D. mich. 2006) (announcing that the search not justified as
search incident to arrest of a “recent occupant” of a vehicle because there
was no evidence the police officers saw the defendant in his car, and the
arrest did not occur in the vicinity of the car); state v. Dean, 76 P.3d 429,
437 (ariz. 2003) (following Glasco, the court held that defendant was
not a “recent occupant” because he had not occupied the vehicle for
some two and a half hours); People v. savedra, 907 P.2d 596, 599 (Colo.
1995) (finding that temporal proximity between the police encounter and
the defendant’s presence in the vehicle are the most important factors in
26
determining whether a defendant is a recent occupant of a vehicle for
Belton purposes and stating that “Belton can include situations where the
occupant of a vehicle anticipates police contact and exits the vehicle immediately before that contact occurs”); a.t.P. v. state, 973 so. 2d 650,
653 (fla. Dist. Ct. app. 2008) (finding that the defendant was not a recent occupant because he was located thirty to sixty feet away from the
vehicle, thirty-five minutes had elapsed since defendant exited the car,
and defendant did not have the keys to the vehicle in his possession);
state v. Clark, 986 so. 2d 625, 629 (fla. Dist. Ct. app. 2008) (holding
that the defendant, who was arrested after getting out of his truck, was a
recent occupant); Black v. state, 810 n.e.2d 713, 716 (ind. 2004) (declaring the arrestee a recent occupant even though he was inside mechanic shop and the vehicle was parked outside); rainey v.
Commonwealth, 197 s.W.3d 89, 94–95 (Ky. 2006), cert. denied, 549
U.s. 1117 (2007) (applying Belton where arrestee was 50 feet from vehicle); state v. Wanzek, 598 n.W.2d 811, 816 (n.D. 1999) (indicating that
the defendant was a recent occupant even though not physically present
in the vehicle when the officer made the arrest); glasco v. Commonwealth, 513 s.e.2d 137, 142 (va. 1999) (stating that a defendant is a recent occupant when he is arrested “in close proximity to the vehicle
immediately after the [defendant] exits the automobile”).
for examples of cases interpreting the “contemporaneousness”
of the search to the arrest, see United states v. hrasky, 453 f.3d 1099,
1102 (8th Cir. 2006), cert. denied, 127 s. Ct. 2098 (2007) (finding that
the search was contemporaneous with the decision to place defendant
under arrest and a culmination of a continuing series of events at the
scene arising from the traffic stop, even though more than 60 minutes
passed between initial detention and search); United states v. smith, 389
f.3d 944, 951 (9th Cir. 2004) (stating that “a search need not be conducted immediately upon the heels of an arrest, but sometimes may be
conducted well after the arrest, so long as it occurs during a continuous
sequence of events,” and that in determining whether a search is a contemporaneous incident of an arrest, the focus should be “not strictly on
the timing of the search but its relationship to—and reasonableness in
light of—the circumstances of arrest”); United states v. Doward, 41 f.3d
789, 793 (1st Cir. 1994) (emphasizing that the Belton Court chose the
phrase “contemporaneous incident of that arrest’ rather than the less expansive phrase ‘contemporaneous with that arrest,” which “plainly implies a greater temporal leeway between the custodial arrest and the
search”); United states v. lugo, 978 f.2d 631, 635 (10th Cir. 1992) (articulating that a search not contemporaneous incident of arrest when occupant was already en route to station); United states v. vasey, 834 f.2d
782, 787–88 (9th Cir. 1987) (holding that a search conducted between
thirty and forty-five minutes after defendant was arrested, handcuffed,
and placed in rear of police vehicle was not contemporaneous incident of
arrest); United states v. scott, 428 f. supp. 2d 1126, 1133 (e.D. Cal.
2006) (arguing that a fifty-three-minute delay between arrest and search
was reasonable because of the need to get the vehicle upright and finish
photographic scene); People v. malloy, 178 P.3d 1283, 1287–88 (Colo.
Ct. app. 2008) (finding that a half-hour delay in conducting search after
defendant’s arrest did not invalidate the search); state v. Badgett, 512
a.2d 160, 169 (Conn. 1986), cert. denied, 479 U.s. 940 (1986) (holding
that the right to continue a Belton search “ceases the instant the arrestee
departs the scene”); United states v. harris, 617 a.2d 189, 193 (D.C.
1992) (agreeing with the federal courts that have held “a search of a vehicle, occurring shortly after the driver or an occupant has been placed
under arrest and restrained, is contemporaneous”); state v. homolka, 953
P.2d 612, 613 (idaho 1998) (determining that whether search is contemporaneous with arrest is judged by a standard of reasonableness under
the circumstances and that the search will generally be contemporaneous
Winter 2009
when conducted on the scene with arrestee still present); state v. giron,
943 P.2d 1114, 1120 (Utah Ct. app. 1997) (stating that contemporaneous
requirement “requires only a routine, continuous sequence of events occurring during the same period of time as the arrest”); state v. fry, 388
n.W.2d 565 (Wis. 1986), cert. denied, 479 U.s. 989 (1986); state v. Ullock, no. 93-1874-Cr, 1994 Wl 100324, at *2 (Wash. Ct. app. mar. 30,
1994) (declaring that a forty-minute delay between arrest and search was
not improper, as it was reasonable for the officer to not leave arrestee unsupervised).
75
in response to Belton, police have developed simple and clear procedures for how to handle searches of automobiles incident to the arrest of
a recent occupant. See, e.g., virginia laW enforCement Professional
stanDarDs Commission, searCh inCiDent to arrest 2-5.4 (1999),
available at http://www.dcjs.virginia.gov/cple/sampleDirectives/manual/pdf/2-5.pdf (finding that vehicles may be searched contemporaneous
with the arrest of the occupant or driver and should be conducted as soon
as practicable, even if the arrestee is not in the vehicle at the time of the
search); memPhis PoliCe DePartment, PoliCy anD ProCeDUres, seCtion 1: searCh anD seiZUre WithoUt a Warrant 4–5 (2006), available
at
https://kiosk.memphispolice.org/forms/Web%20Policy/Ch03/Ch%20iii
%20sec%2001%20search%20and%20seizure%20without%20a%20Wa
rrant.doc (proclaiming that after a lawful arrest, and an “individual is
placed in custody in or about a vehicle,” the officer may search the passenger compartment of the vehicle); alasKa DePartment of PUBliC
safety, legal BUlletin manUal: inCiDent to arrest e.3 (2007),
available at http://www.dps.state.ak.us/aPsC/docs/legalmanual/einCiDenttoarrest.pdf (citing case upholding search incident to arrest
after arrestee handcuffed and in police car); Pine BlUff PoliCe DePartment, PoliCy anD ProCeDUres manUal (2008), available at
http://www.pbpd.org/Policies%20PDf/Chapteriii/microsoft%20Word%20-%20Pol0352%20_search%20motor%20vehicle_.pdf (arguing that whenever
possible, search of a motor vehicle incident to arrest should be conducted
at the location of the arrest, but search of the vehicle may be delayed
when exigent circumstances are present); el Paso CoUnty sheriff’s
offiCe, PoliCy anD ProCeDUre manUal, searCh anD seiZUre/arrests
8 (2005), http://shr.elpasoco.com/nr/rdonlyres/44D9ee1B-DBB44D71-B6f0-75C141a40e10/0/702_policy.pdf (finding that when occupant of a vehicle has been taken into custody, the officer may search the
passenger compartment of the vehicle without a warrant).
76
See Belton, 453 U.s. at 470 (Brennan, J., dissenting) (discussing the
numerous questions and complexities that are raised because the majority abandoned the justifications for the bright-line rule of Chimel and did
not give the police any bright-line rules as to how to interpret “recent occupant” or “contemporaneous to arrest”).
77
See thornton v. United states, 541 U.s. 615, 623–24 (2004) (upholding under Belton a search of defendant’s vehicle, of which defendant was
a recent occupant, conducted after defendant was handcuffed and placed
in the back seat of a patrol car); see also atwater v. City of lago vista,
532 U.s. 318, 366 (2001); Knowles v. iowa, 525 U.s. 113, 117–18
(1998); ornelas v. United states, 517 U.s. 690, 697 (1996); California v.
acevedo, 500 U.s. 565 (1991); Colorado v. Bertine, 479 U.s. 367, 375
(1987); United states v. hensley, 469 U.s. 221 (1984); oliver v. United
states, 466 U.s. 170 (1983); michigan v. long, 463 U.s. 1032 (1983);
illinois v. andreas, 463 U.s. 765 (1983); illinois v. lafayette, 462 U.s.
640 (1983); texas v. Brown, 460 U.s. 730 (1983). But see Chambers,
399 U.s. at 47 (declaring that police cannot constitutionally search an
impounded car on a search incident to arrest theory after both the car and
the defendant have been moved to the station house).
Criminal Law Brief
for examples of when courts have held a search valid when arrestee
was handcuffed and locked in the police car, see United states v. Weaver,
433 f.3d 1104, 1107 (9th Cir. 2006), cert. denied, 126 s. Ct. 2053 (2006)
(stating that Belton controls where the arrestee is handcuffed and locked
in a patrol car), cert. denied, 126 s. Ct. 2053 (2006); United states v.
Barnes, 374 f.3d 601, 605 (8th Cir. 2004) (holding that a vehicle search
upheld as incident to arrest after arrestee was arrested, handcuffed, and
placed in police patrol car); United states v. Doward, 41 f.3d 789, 794
(1st Cir. 1994) (finding that Belton is controlling where the police performed a contemporaneous search of a hatchback vehicle); United states
v. Patterson, 993 f.2d 121, 123 (6th Cir. 1993) (6th Cir. 1993) (ruling
that Belton controls, even when the vehicle was searched and impounded); United states v. Karlin, 852 f.2d 968, 972 (7th Cir. 1988)
(finding that Belton controls “without determining whether the officer
had rendered Karlin incapable of reaching into the van.”); state v. skaggs, 903 so. 2d 180, 182 (ala. Crim. app. 2004) (holding that Belton is
controlling where the police performed an automobile search incident to
arrest just before the suspect’s relative arrived to take the vehicle home);
People v. stoffle, 3 Cal. rptr. 2d 257, 263 (Cal. Ct. app. 1991) (ruling
that Belton permits vehicle searches incident to arrest where “the evidence discovered during the search had nothing to do with the crime for
which the person was arrested, or where it was just as unlikely as in defendant’s case that weapons would be found.”); state v. Waller, 612 a.2d
1189, 1192 (Conn. 1992) ; state v. hopkins, 293 s.e.2d 529, 531 (ga.
Ct. app. 1982) (holding that Belton controls when “articles in the passenger compartment are ‘unaccessible’ to the arrestee.”); state v.
Wheaton, 825 P.2d 501, 503 (idaho 1992) (holding that under Belton,
“[o]nce having made a lawful custodial arrest of an occupant of an automobile, there is no need for further justification in order to search the
passenger compartment of an automobile); People v. Bailey, 639 n.e.2d
1278, 1282 (ill. 1994) (“[v]alidity of a Belton search is not affected by
the circumstance that defendant no longer had effective access to his vehicle when the search was conducted.”); state v. edgington, 487 n.W.2d
675, 677–78 (iowa 1992) (holding that Belton permits contemporaneous
searches of passenger compartments incident to arrest, but that searches
of a vehicle’s trunk must be justified on other grounds); state v. Press,
685 P.2d 887, 894 (Kan. 1984); state v. Jerome, 983 so.2d 214, 216 (la.
Ct. app. 4th Cir. 2008); hamel v. state, 943 a.2d 686, 696 (md. Ct.
spec. app. 2008) (ruling that “[t]he fact that hamel was secured and
without access to his vehicle did not cause the search of the locked glove
compartment to exceed the permissible scope of the search incident to
his arrest.”); townsend v. state, 681 so.2d 497, 504 (miss. 1996); state
v. scott, 200 s.W.3d 41, 44 (mo. Ct. app. 2006) (noting that “the concern for officer safety is applicable even when the officer has already secured the suspect in handcuffs. . .”); state v. gonzalez, 487 n.W.2d 567,
572 (neb. 1992) (holding that “handcuffing the arrestee and placing the
suspect away from the grabbable area of the vehicle does not prohibit a
contemporaneous Belton-type search of the vehicle from which the arrestee recently came.”); state v. miskolczi, 465 a.2d 919, 921–22 (n.h.
1983); state v. murrell, 764 n.e.2d 986, 992-93 (ohio 2002); state v.
reed, 634 s.W.2d 665, 666 (tenn. Crim. app. 1982) (holding that Belton controls even when the arrestee is handcuffed and in a non-responsive stupor); Pettigrew v. state, 908 s.W.2d 563, 570 (tex. app. fort
Worth 2d Dist. 1995) (“a search under Belton is allowed even when the
arrestee has been handcuffed and placed in a police car.”); state v.
moreno, 910 P.2d 1245 (Utah Ct. app. 1996).
for examples of when courts have held a search valid when
defendant arrested and placed in patrol car, see state v. valdes, 423 so.
2d 944 (fla. Dist. Ct. app. 1982) (finding that search was valid when the
defendant arrested and placed in patrol car); state v. Cooper, 286 s.e.2d
78
27
102 (n.C. 1982); state v. Wanzek, 598 n.W.2d 811, 816 (n.D. 1999);
Glasco, 513 s.e.2d at 140; state v. fladebo, 720 P.2d 436, 440–41 (Wa.
1986).
Courts holding searches valid when arrestee handcuffed: see
e.g., United states v. mapp, 476 f.3d 1012, 1019 (D.C. Cir. 2007) (upholding search of arrestee’s car conducted after arrestee handcuffed and
under police control); United states v. Currence, 446 f.3d 554, 559 (4th
Cir. 2006) (stating that the search of vehicle after arrestee placed in
handcuffs upheld as valid search incident to arrest); United states v. Cotton, 751 f.2d 1146 (10th Cir. 1985) (declaring that the search of defendant’s vehicle after defendant was outside vehicle and handcuffed
upheld); United states v. Collins, 668 f.2d 819, 821 (5th Cir. 1982);
stout v. state, 898 s.W.2d 457 (ark. 1995) (holding that the search of
vehicle after arrestee placed in handcuffs upheld); Black v. state, 810
n.e.2d 713, 716 (ind. 2004); Rainey, 197 s.W.3d at 95 (articulating that
the search of arrestee’s car upheld even though conducted after he was
handcuffed and “so far from his vehicle that it was unlikely he could
have accessed it”); state v. harvey, 648 s.W.2d 87, 90 (mo. 1983) (upholding the search of vehicle when arrestee was handcuffed out of the
car and presided over by two armed detectives).
Courts also recognize the nearly universal acceptance of Belton as a bright-line rule. See, e.g., People v. savedra, 907 P.2d at 598 n.1
(Colo. 1995) (citing federal courts of appeals cases, the court states that
“the passenger compartment is within the Belton zone even where the arrestee is away from the vehicle and safely within police custody at the
time of the search”); United states v. mendez, 139 f. supp.2d 273, 279
(D. Conn. 2001) (stating that a myriad of cases have concluded that the
“search of an automobile is generally reasonable even if the occupant
has exited the vehicle and is under the control of an officer”); traylor v.
state, 458 a.2d 1170, 1174 (Del. 1983) (noting that Belton is applicable
to a search of a vehicle even though defendant arrested and in handcuffs); People v. mungo, 747 n.W.2d 875, 882 (mich. Ct. app. 2008)
(stating that Belton rule has “been interpreted to permit a full search of
the interior of an automobile even when the arrestee has been removed
from the car, handcuffed, and placed in a secure area, thus alleviating
concerns of officer safety and preservation of any evidence contained in
the car”); state v. White, 489 n.W.2d 792, 796 (minn. 1992) (“thus,
under Belton, an incidental search of the car is allowed even after the defendant is placed in the squad car.”); state v. rice, 327 n.W.2d 128, 131
(s.D. 1982) (accepting Belton’s reasoning and as a bright-line rule).
79
See, e.g., state v. greenwald, 858 P.2d 36, 43 (nev. 1993) (a search
conducted of defendant’s motorcycle after he was locked away in a police car was not a valid search incident to arrest); state v. eckel, 888
a.2d 1266, 1277 (n.J. 2006) (rejecting bright-line application of Belton
when defendant was arrested and placed in a patrol car under state constitution); state v. rowell, 188 P.3d 95, 101 (n.m. 2008) (rejecting Belton bright-line rule in favor of a search incident to arrest exception
“anchored in the specific circumstances facing an officer”); People v.
Blasich, 541 n.e.2d 40, 43 (n.y. 1989) (rejecting the Belton bright-line
rule and interpreting the state constitution to limit warrantless searches
of automobiles incident to arrest only to area from which arrestee might
actually gain possession of weapon or destructible evidence); state v.
Kirsch, 686 P.2d 446, 448 (or. Ct. app. 1984) (finding that the state constitution allows search incident to arrest only if necessary to protect officer or preserve evidence or when the search is relevant to the crime for
which the suspect was arrested); Commonwealth v. White, 669 a.2d
896, 902 (Pa. 1995) (arguing that a search incident to arrest is not justified when defendant was patted down, moved a short distance from the
car, and under close police guard); state v. Bauder, 924 a.2d 38, 46 (vt.
2007) (rejecting Belton under the state constitution); holman v. state,
28
183 P.3d 368, 373, 377 (Wyo. 2008) (holding that under the totality of
the circumstances, there were no articuable safety concerns to justify a
search of the vehicle while the defendant was handcuffed and in a squad
car); see also Commonwealth v. toole, 448 n.e.2d 1264, 1268 (mass.
1983) (stating that a search conducted while defendant was arrested,
handcuffed, and in custody of two state troopers was invalidated under
state law).
80
see, e.g., United states v. lugo, 978 f.2d 631, 635 (10th Cir. 1992)
(articulating that Belton does not control when an arrestee is no longer
on the scene); United states v. vasey, 834 f.2d 782, 787–88 (9th Cir.
1987) (finding that there was no exigency to justify a warrantless search
conducted thirty to forty-five minutes after an arrest and while defendant
was handcuffed and seated in the rear of a police car); state v. Badgett,
512 a.2d 160, 169 (Conn. 1986), cert. denied, 479 U.s. 940 (1986) (declaring that Belton only applies when arrestee remains at the scene);
state v. Kunkel, 455 n.W.2d 208, 210 (n.D. 1990) (stating that a search
incident to arrest exception does not apply when vehicle is searched at a
location other than the scene of the arrest); see also Wayne r. lafave,
searCh anD seiZUre: a treatise on the foUrth amenDment § 7.1(c),
at 518 n. 92 (4th ed. 2004)[hereinafter lafave, search and seizure] (listing cases having an “on-the-scene requirement”).
81
See Belton, 453 U.s. at 458 (citing Wayne r. lafave, “Case-By-Case
Adjudication” Versus “Standardized Procedures”: The Robinson
Dilemma, 1974 sUP. Ct. rev. 127, 142 [hereinafter lafave, The Robinson Dilemma] (approving of bright-line rules as easier for police to
apply)).
82
See, e.g., albert W. alschuler, Bright Line Fever and the Fourth
Amendment, 45 U. Pitt. l. rev. 227, 274 (1984) (stating that once occupants are removed from a vehicle, there is little chance they will be able
to get a weapon or destroy evidence in the vehicle); Jeffrey a. Carter,
Fourth Amendment – of Cars, Containers and Confusion, 72 J. Crim. l.
& Criminology 1171, 1173, 1217–21 (1981) (stating that the Belton decision enhanced the confusion concerning fourth amendment requirements for automobile and container searches); Wayne r. lafave, The
Fourth Amendment in an Imperfect World: On Drawing “Bright Lines”
and “Good Faith”, 43 U. Pitt. l. rev. 307, 325 (1981–1982) [hereinafter lafave, The Fourth Amendment] (arguing that Belton does a disservice to the development of sound fourth amendment doctrine);
lawrence gene sager, The Supreme Court, 1980 Term, 95 harv. l. rev.
251, 260 (1981); robert stern, robbins v. California and new york v.
Belton: The Supreme Court Opens Car Doors to Container Searches, 31
am. U. l. rev. 291, 317 (1982) (arguing that Belton diminished the
value in balancing the protection of privacy interests with the promotion
of law enforcement activities in the area of automobile and container
searches).
83
541 U.s. at 615 (2004).
84
Id. at 617.
85
Id.
86
Id. at 617–18.
87
Id. at 618.
88
Thornton, 541 U.s. at 618.
89
Id.
90
Id.
91
Id.
92
Id.
93
Thornton, 541 U.s. at 618.
94
Id.
95
Id.
96
Id.
97
Id.
Winter 2009
Thornton, 541 U.s. at 618.
Id.
100
Id. at 618–19.
101
Id. at 619.
102
See Belton, 453 U.s. at 455–56.
103
See Thornton, 541 U.s. at 620–21 (noting that the Court’s dicta in
michigan v. long, 463 U.s. 1032 (1983), discussed the constitutionality
of a search where officers initiated contact with and arrested a suspect
after the suspect exited his vehicle).
104
Id.
105
Id. at 620.
106
Id. at 617.
107
Id. at 620.
108
Thornton, 541 U.s. at 620.
109
Id. at 620–21.
110
Id. at 621.
111
Id. (emphasis in original).
112
Id. (emphasis added).
113
Thornton, 541 U.s. at 615–16.
114
Id. at 622.
115
Id. at 623 (articulating that the search was contemporaneous to arrest).
116
Id. at 625.
117
Id. at 627.
118
Thornton, 541 U.s, at 625 (scalia, J., concurring).
119
Id.
120
Id.
121
Id. at 625–26 (quoting United states v. frick, 490 f.2d 666, 673 (5th
Cir. 1973)).
122
Id. at 627.
123
Thornton, 541 U.s. at 627–28.
124
Id. at 628; see also supra note 80.
125
See supra note 75. But see, e.g., lUBBoCK inDePenDent sChool DistriCt, Criminal investigations manUal Ch. 2, 7, available at
http://www.lubbockisd.org/Police/operations/Procedures-Ch2.pdf
(“[W]henever an officer makes a custodial arrest of a person in a vehicle,
the officer should search the person and his access area, for evidence and
weapons . . . [but the] search should occur at the time and place of the arrest.”).
126
Thornton, 541 U.s. at 632 (scalia, J., concurring) (citing Rabinowitz);
see Rabinowitz, 339 U.s. at 62–63 (upholding the search of plaintiff’s
car because there was reasonable belief evidence would be found).
127
Thornton, 541 U.s. at 630–31; see entick v. Carrington, 19 how. st.
tr. 1029, 1031, 1063–1074 (C. P. 1765) (disapproving a search of private
papers under a general warrant after an arrest).
128
Thornton, 541 U.s. at 631.
129
Id.
130
Id. at 632 (scalia, J., concurring); Rabinowitz, 339 U.s. at 56.
131
Thornton, 541 U.s. at 632 (scalia, J., concurring).
132
for example, would such a search ever be unreasonable or is it a
bright-line rule of reasonableness? must the arrest be of a recent occupant and the search contemporaneous to the arrest? if so, why? What is
the scope of the permissible search? may police look only in those
places likely to reveal such related evidence? What evidence is related
to each particular crime and what is not? What about containers? are
legitimate searches limited to those containers reasonably likely to contain evidence of the arrest crime? Can’t drug evidence be found anywhere? is a gun related to marijuana possession? What if evidence
unrelated to the arrest offense is found in the car in a place legitimately
being searched? how will we determine the reasonableness of police
decisions? Will the good faith exception apply?
98
99
Criminal Law Brief
Thornton, 541 U.s. at 636 (stevens, J., dissenting).
Id. Justice o’Connor concurred, separately, writing that the majority’s opinion in Thornton was “a logical extension of the holding in New
York v. Belton, [but she wrote] separately to express [her] dissatisfaction
with the state of the law in this area.” Id. at 624 (o’Connor J., concurring) (citation omitted). the Court treated Belton searches as “entitlements” rather than as an “exception” of Chimel, she wrote, and “that
erosion is a direct consequence of Belton’s shaky foundation.” Id. o’Connor also expressed her agreement with Justice scalia’s approach but
did not want to adopt it in a case in which neither side has addressed the
issue. Id. at 625.
135
162 P.3d 640 (ariz. 2007), aff’d 129 s.Ct. 1710 (2009).
136
Id. at 641.
137
Id.
138
Id.
139
Gant, 162 P.3d at 641.
140
Id.
141
See id.
142
Id.
143
Id.
144
Gant, 162 P.3d at 641.
145
Id.
146
Id.
147
Id.
148
Id.
149
Gant, 162 P.3d at 641.
150
Id.
151
Id.
152
Id.; arizona v. gant, 538 U.s. 976 (2003).
153
arizona v. gant, 540 U.s. 963 (2003).
154
76 P.3d 429 (ariz. 2003).
155
Id. at 437.
156
gant, 162 P.3d at 641.
157
Id.
158
Id. at 646.
159
arizona v. gant, 128 s. Ct. 1443, 1444 (2008).
160
gant, 162 P.3d at 641.
161
Id.
162
Id. at 643–44.
163
Id. at 643 (emphasis added).
164
Id.; cf. state v. Dean, 76 P.3d 429, 437 (ariz. 2003) (indicating that
the arrestee was not a recent occupant of the car).
165
Gant, 162 P.3d at 643.
166
Id. at 643, 643 n.2 (agreeing with scalia that applying Belton to Gant
facts “stretches [the doctrine] beyond its breaking point” (quoting Thornton, 541 U.s. at 625 (scalia, J., concurring)).
167
Id. at 643.
168
Id.
169
Id.
170
Id. at 644, 646 n.5.
171
Gant, 162 P.3d at 644.
172
Id.
173
Id.
174
Id.
175
for examples of such cases, see id. at 645.
176
Gant, 162 P.3d at 649.
177
Id. at 645.
178
Id. at 646 (Bales, J., dissenting); see also United states v. Weaver, 433
f.3d 1104, 1107 (9th Cir. 2006), cert. denied, 126 s. Ct. 2053 (2006)
(leaving question of whether Belton rule is flawed to the supreme
133
134
29
Court).
179
Gant, 162 P.3d at 646–50 (Bales, J. dissenting).
180
Id. at 647 (quoting Robinson, 414 U.s. at 235).
181
Id. (quoting Belton, 453 U.s. at 454, 455–56 (citation omitted)).
182
Id.
183
Id. (quoting Belton, 453 U.s. at 461).
184
Gant, 162 P.3d at 647.
185
Id.
186
Id. at 647–48.
187
Belton, 453 U.s. at 465–66 (Brennan, J., dissenting).
188
Id.; see Gant, 162 P.3d at 648.
189
Gant, 162 P.2d at 648.
190
Belton, 453 U.s. at 456.
191
Id. at 462–63.
192
Gant, 162 P.2d at 648 (citing Belton, 453 U.s. at 468 (Brennan, J.,
dissenting)).
193
Id.; supra note 78. But see state v. ritte, 710 P.2d 1197, 1201 (haw.
1985) (holding that the search was not within Belton because arrestee
was taken from the area and vehicle was not within his immediate control); state v. hernandez, 410 so. 2d 1381, 1385 (la. 1982) (articulating
that Belton’s rule does not apply “after an arrestee has been handcuffed
and removed from the scene, foreclosing even the slightest possibility
that he could reach for an article within the vehicle”); ferrell v. state,
649 so. 2d 831, 833 (miss. 1995) (upholding that the search of arrestee’s
vehicle conducted after arrestee placed in patrol car was not within Belton because rationales underlying exception were absent); state v.
greenwald, 858 P.2d 36, 43 (nev. 1993) (stating that a search of the defendant’s motorcycle after he was locked away in a police car was not a
valid search incident to arrest).
194
Belton, 453 U.s. at 460.
195
See, e.g., Gant, 162 P.3d at 648–49 (Bales J., dissenting); United
states v. hrasky, 453 f.3d 1099, 1103 (finding that the search was contemporaneous with the decision to place the defendant under arrest and a
culmination of a continuing series of events at the scene arising from the
traffic stop, even though more than 60 minutes passed between the initial
detention and search); United states v. smith, 389 f.3d 944, 951 (9th Cir.
2004) (stating that a search does not need to occur immediately after the
arrest but may be conducted well after the arrest as long as it is conducted in the course of a continuous sequence of events, and in determining whether a search is a contemporaneous incident of an arrest, the
focus should be “not strictly on the timing of the search but its relationship to (and reasonableness in light of) the circumstances of arrest”);
United states v. Doward, 41 f.3d 789, 793 (1st Cir. 1994) (emphasizing
that the Belton Court chose the phrase “contemporaneous incident of that
arrest” rather than the less expansive phrase “contemporaneous with that
arrest” which “plainly implies a greater temporal leeway between the
custodial arrest and the search . . .”); United states v. lugo, 978 f.2d
631, 635 (holding that a search is not a contemporaneous incident of arrest when occupant was already en route to station); United states v.
harris, 617 a.2d 189, 193 (D.C. 1992) (agreeing with the federal courts
that “a search of a vehicle, occurring shortly after the driver, or an occupant, has been placed under arrest and restrained, is contemporaneous”);
United states v. vasey, 834 f.2d 782, 787–88 (9th Cir. 1987) (asserting
that a search conducted between thirty and forty-five minutes after defendant was arrested, handcuffed, and placed in rear of police vehicle
was not contemporaneous incident of arrest); United states v. scott, 428
f. supp. 2d 1126, 1133 (e.D. Cal. 2006) (establishing that a fifty-threeminute delay between arrest and search was reasonable because of the
need to get the vehicle upright and finish photographing the scene); People v. malloy, 178 P.3d 1283, 1287–88 (Colo. app. 2008) (finding that a
30
half-hour delay in conducting search after defendant’s arrest did not invalidate the search); state v. Badgett, 512 a.2d 160, 169 (holding that
the right to continue a Belton search “ceases the instant the arrestee departs the scene”); state v. homolka, 953 P.2d 612, 613 (finding that the
determination of whether search is contemporaneous with arrest is
judged by a standard of reasonableness under the circumstances, and
search will generally be contemporaneous when conducted on the scene
with arrestee still present); state v. giron, 943 P.2d 1114, 1120 (Utah Ct.
app. 1997) (articulating that the contemporaneous requirement “requires
only a routine, continuous sequence of events occurring during the same
period of time as the arrest”); state v. fry, 388 n.W.2d 565, 577 (Wis.
1986), cert. denied, 479 U.s. 989 (1986) (asserting that the right to a
Belton search continues after arrestee leaves the scene).
196
Gant, 162 P.3d at 649.
197
Id.
198
Id.
199
See Belton, 453 U.s. at 469–71 (Brennan, J., dissenting).
200
Gant, 162 P.3d at 649 (Bales, J., dissenting).
201
Id.
202
Id. (quoting Thornton at 624 (o’Connor, J., concurring in part)); see
supra note 82.
203
Gant, 162 P.3d at 649–50 (citing cases rejecting Belton under state
constitution). See, e.g., state v. Pierce, 642 a.2d 947, 958 (n.J. 1994)
(rejecting Belton under the new Jersey state constitution); People v. Blasich, 541 n.e.2d 40 (articulating that new york rejects the Belton brightline rule and interprets the state constitution to limit warrantless searches
of automobiles incident to arrest only to areas from which arrestee might
actually gain possession of weapon or destructible evidence); state v.
Kirsch, 686 P.2d 446, 448 (finding that the state constitution allows a
search incident to arrest only if it is necessary to protect officer or preserve evidence or when the search is relevant to the crime for which the
suspect is arrested).
204
there were no recorded dissenting opinions against the granting of
certiorari. this case drew a number of amicus briefs on the merits from
the United states, law enforcement groups such as national association
of federal Defenders, national association of Criminal Defense
lawyers, the los angeles County District attorney on behalf of los angeles County, and the american Civil liberties Union of arizona and
twenty-five states. the supreme Court granted the United states time
for oral argument.
Petition for Writ of Certiorari at 10, arizona v. gant, 129 s. Ct. 1710
(2009) (no. 07-542), 2007 Wl 3129919 [hereinafter Petition for Writ of
Certiorari].
206
Id. at 8.
207
Id. at 11.
208
Id. at 13.
209
Id. at 8.
210
See Petition for Writ of Certiorari, supra note 205, at 8.
211
Id. at 9 (quoting Belton, 453 U.s. at 459).
212
Brief in opposition at 12, arizona v. gant, 129 s. Ct. 1710 (2009)
(no. 07-542), 2008 Wl 4527980 [hereinafter Brief in Opposition].
213 Id. at 9.
214
Id. at 11.
215
Id. at 15.
216
Id. at 9.
217
Brief in opposition, 2008 Wl 4527980 at 19.
218
See Gant, 162 P.3d at 645 n.4 (noting cases which have applied Belton and Thornton to determine whether searches were conducted inci
dent to arrest); supra notes 79-80.
219
Brief for the Petitioner at 22–23, arizona v. gant, 129 s. Ct. 1710
(2009) (no. 07-542), 2008 Wl 4527980[hereinafter Brief for the Petitioner].
205
Winter 2009
Id. at 40–43.
Id. at 45–46.
245
Gant Transcript, supra note 4, at 35–36, 41–42.
246
Id. at 39.
247
Id. at 37.
248
Id.
249
Id. at 37–38.
250
Gant Transcript, supra note 4, at 6, 12, 18, 22–23.
251
Id. at 22–23.
252
Id. at 23.
253
Id.
254
See generally id. (Justice Scalia asking the most questions to both the
government and Gant).
255
Gant Transcript, supra note 4, at 8.
256
Id. at 7.
257
Id.
258
Id. at 7–8.
259
Id. at 9.
260
Gant Transcript, supra note 4, at 9.
261
Id.
262
Id. at 16–17.
263
Id. at 17.
264
Id. at 22.
265
See Gant Transcript, supra note 4, at 21–22.
266
See id. at 25–26 (expressing uneasiness over the argument that police
may impound and search a vehicle for reasons not limited to public
safety or other similar rationales).
267
Id. at 26.
268
Id. at 32.
269
Gant Transcript, supra note 4, at 32.
270
Id.
271
Id. at 33.
272
Id. at 5.
273
Gant Transcript, supra note 4, at 25.
274
Id. at 4–5.
275
Id. at 13.
276
Id. at 24.
277
Id. at 24–25.
278
Gant Transcript, supra note 4, at 45.
279
Id. at 20.
280
Carroll v. United States, 267 U.S. 132, 158 (1925).
281
Gant Transcript, supra note 4, at 8–9.
282
Id. at 9.
283
Id. at 20–21.
284
Id. at 20.
285
Id. at 6.
286
Gant Transcript, supra note 4, at 6.
287
Id.
288
Id. at 10.
289
Id. at 10.
290
Id.
291
Gant Transcript, supra note 4, at 10..
292
Id.
293
Id. at 19.
294
See id. Justice Clarence Thomas asked no questions and made no
statements from the bench during oral argument.
295
See Gant, 162 P.3d at 649 (Ariz. 2007) (Bales, J., dissenting). Bales
lists several alternative approaches to Belton, should the U.S. Supreme
Court decides to reconsider its holding. One is to specifically take the
approach adopted by the Gant majority. Second is to draw a new bright
243
Id. at 24–25; see also, e.g., Brief for the United States as Amicus Curiae Supporting Petitioner at 22–23, Arizona v. Gant, 129 S. Ct. 1710
(2009) (No. 07-542), 2008 WL 2149864.
221
Petitioner’s Brief on the Merits at 37, Arizona v. Grant, 129 S. Ct.
1710 (2009) (No. 07-542), 2008 WL 2066112.
222
Id.
223
Id. at 39.
224
Brief of Respondent at 11, Arizona v. Gant, 129 S. Ct. 1710 (2009)
(No. 07-542), 2008 WL 4527980.
225
Id. at 15.
226
Id. at 38–41.
227
Id. at 32–34.
228
Id. at 42–45.
229
Gant Transcripts, supra note 4, at 7.
230
See generally id. at 4-14, 14-31.
231
Id. at 10, 23.
219
232 Brief for the Petitioner at 22–23, Arizona v. Gant, 129 S. Ct. 1710
See generally id. at 4-14, 14-31
233
See id. at 9-12 (questioning the assertion that arrestees who are handcuffed and confined to a squad car pose an actual danger to police on
scene).
220
For examples articulating the special circumstances required to overturn established precedent, see, e.g., Pearson v. Callahan, 129 S. Ct. 808,
816 (2009) (“Revisiting precedent is particularly appropriate where . . . a
departure would not upset settled expectations.”); United States v.
Gaudin, 515 U.S. 506, 521 (1995) (articulating that “stare decisis cannot
possibly be controlling when . . . the decision in question has been
proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court”; the role of stare decisis is reduced when
the rule is procedural and rests on an interpretation of the Constitution);
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 857
(1992) (finding that where “development of constitutional law since the
case was decided has implicitly or explicitly left [it] behind as a mere
survivor of obsolete constitutional thinking” a case is properly overruled); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (arguing that stare
decisis is not an inexorable command particularly in constitutional cases
because “correction through legislative action is practically impossible”)
(citation omitted); Arizona v. Rusmey, 467 U.S. 203, 212 (1984) (“[A]ny
departure from the doctrine of stare decisis demands special justification.”); Arizona v. California, 460 U.S. 605, 619 n. 8 (1983) (declaring
that stare decisis does not apply when the Court is “convinced that [its
prior decision] is clearly erroneous and would work a manifest injustice”); Smith v. Allwright, 321 U.S. 649, 665 (1944) (stating that when
governing decisions are unworkable or badly reasoned, “this Court has
never felt constrained to follow precedent”); Helvering v. Hallock, 309
U.S. 106, 119 (1940) (articulating that stare decisis “is a principle of policy and not a mechanical formula of adherence to the latest decision”).
235
See Thornton, 541 U.S. at 616 (joining the majority opinion were Justices Kennedy, Breyer, and Thomas).
236
Justices Roberts and Alito were not members of the Court for the last
decision regarding automobile searches incident to arrests. See id. at
616.
237
See Gant Transcript, supra note 4, at 27-30 (questioning the underlying rationale that arrestees handcuffed and confined to a squad car are
actual threats to officer safety or evidence).
238
See Thornton, 541 U.S. at 625 (Scalia, J., joined by Ginsburg, J., concurring)
239
See id. at 632 (Stevens, J., joined by Souter, J., dissenting).
240
Gant Transcript, supra note 4, at 11.
241
Id. at 39.
242
Id. at 39–40.
234
Criminal Law Brief
244
31
line, possibly excluding searches when the arrestee is restrained by handcuffs and in the police car or away from his vehicle, but the potential for
dispute of whether the facts of each case rise to this level are apparent.
Third would be to limit the scope of the permissible search to the passenger compartment and exclude containers. Finally, fourth would be to
allow searches of the car only when there are reasonable grounds to believe that it may contain evidence of the crime for which the suspect is
being arrested. See Thornton, 541 U.S. at 632 (Scalia, J., joined by
Ginsburg, J., concurring)).
296
See supra Possible Holding 5, “Other Means to the End: Warrants
Based Upon Probable Cause or Other Exceptions.”
297
Gant, 129 S. Ct. at 1724.
298
Id. at 1723.
299
Id.
300
Id. at 1723–24.
301
Id. at 1716.
302
Gant, 129 S. Ct. at 1716 (quoting Chimel, 395 U.S. at 763).
303
Id.
304
Id. at 1717 (quoting Belton, 453 U.S. at 460).
305
Id. at 1719.
306
Id. at 1717 (quoting Belton, 453 U.S. at 460).
307
Gant, 129 S. Ct. at 1720 (rejecting Arizona’s argument that the search
of Gant’s vehicle was reasonable under the bright-line rule established
under a broad reading of Belton).
308
Id. at 1718.
309
Id. (quoting Belton, 453 U.S. at 466, 468).
310
Id. (quoting Thornton, 541 U.S. at 624).
311
Id. (citing Thornton, 541 U.S. at 628).
312
Gant, 129 S. Ct. at 1719.
313
Id.
314
See id. (holding that the search of Gant’s car was unreasonable because police could not have reasonably believed that Gant could either
access his car or the evidence contained within at the time of the search).
The Court rejected the argument that law enforcement had been trained
in and had come to consistently rely on the bright-line or “broad” reading of Belton for some three decades. The Court claimed the generalization underpinning the broad reading, that in most cases the arrestee
would have access to the interior compartment, had proven to be unfounded. Adherence to its faulty assumption, the Court asserted, would
lead to an unacceptable incident of unconstitutional searches. That argument, of course, begs the question whether or not the traditional reading
of Belton is constitutional in the first place. With this declaration that
there have been unconstitutional searches under current law, the Court is
inviting subsequent litigation seeking to apply Gant retroactively under
Teague v. Lane and its progeny.
315
Id. at 1722; see also Belton, 453 U.S. at 455–56.
316
Gant, 129 S. Ct. at 1715.
317
Id. at 1730.
318
Id.
319
See Thornton, 541 U.S. at 632 (Scalia, J., concurring).
320
Gant, 129 S. Ct. at 1719 (quoting Thornton, 541 U.S. at 632 (Scalia,
J., concurring)).
321
Id.
322
Id.
323
Id.
324
Id. at 1724–25 (Scalia, J., concurring (quoting Chimel, 395 U.S. at
752).
325
Gant, 129 S. Ct. at 1724-25 (Scalia, J., concurring).
326
Id. at 1725.
327
Id.
32
Id.
Id.
330
Gant, 129 S. Ct. at 1725 (Scalia, J. concurring).
331
Id. at 1726 (Alito, J., dissenting).
332
Id.
333
Id. at 1727–28.
334
Id. at 1728.
335
Gant, 129 S. Ct. at 1731.
336
Id. at 1725 (Breyer, J., dissenting).
337
Id. at 1726.
338
Id.
339
Id. at 1724 (Scalia, J., concurring).
340
Id. (citation omitted).
341
Id.
328
329
About the Authors
Andrew Fois is a former federal prosecutor and Assistant Attoreny General teaching Criminal Procedure at the Georgetown University Law Center at
which time Lauren Simmons was a third-year law
student.
Winter 2009
The Case for a Criminal Law Theory of Intentional
Infliction of Emotional Distress
By LESLIE YALOF GarfieLd
W
ords hurt! Recent cyber bulling news
stories show that a word can be as
painful as a punch.1 Unfortunately, the
law redresses those who suffer injury
from harmful speech through a series of innocuous
remedies, including financial remuneration or retribution through minimal criminal penalties.2 However, the
law does not criminally sanction those who intentionally
inflict verbal emotional harm to the same degree as
those who intentionally inflict physical harm.3 In other
words, the legislature and the
courts are have not yet elevated an actor’s intentional
inflictions of verbal harm to
the same jurisprudential echelon as intentional inflictions
of physical force.4
Consider the first federal cyber bullying case of
Ms. Lori Drew.5 Ms. Drew, a
forty-nine-year-old woman,
was charged for using a fake
“MySpace” account to torment a thirteen-year-old girl.6 The girl committed suicide as a result of the hoax.7 Initially, Ms. Drew was
found guilty of three counts of unauthorized access to a
web site—misdemeanors that carry minimal punishment.8 The verdict was subsequently overturned by a
federal judge.9 The conduct that Ms. Drew was charged
with was one that “millions of people” engaged in, and
the judge was reluctant to establish a precedent on which
any person may be convicted for a mere violation of
MySpace’s terms of service.10
Society does not impose criminal sanctions for
the intentional infliction of severe mental anguish; instead, such acts are punished civilly as the intentional
infliction of emotional distress (IIED). Interestingly,
IIED is the only intentional tort involving harm to a person that does not share a criminal counterpart.11 Every
state has imposed criminal penalties for the intentional
torts of assault, battery, and false imprisonment.12 It appears that the intentional infliction of emotional distress
is accorded a lesser punitive status than the choice to
threaten or use physical force against another.
Criminal Law Brief
The same elements are used to prove both IIED and the
criminal charges for assault, battery and false imprisonment. IIED, like assault and false imprisonment, is
largely a mental anguish offense.13 A prima facie case
for IIED requires, among other elements, proof that the
plaintiff suffered severe emotional harm.14 Similarly, assault and false imprisonment require proof that a victim
suffered a similar type of cognitive distress, such as a
fear of harm or loss of liberty.15 In contrast, battery requires proof of physical harm.16
At first blush, one
might argue that IIED,
which is a harm of severe
emotional distress, does
not share the requirement
that the plaintiff suffered
some physical pain. However, according to recent
biological and neurochemical studies, one can experience physical pain in
response to a tone or a particular set of harsh words.17
If one accepts these findings as true, the physical harm
requirement of battery may be equally prevalent among
those who are subject to severe and outrageous conduct.
Given that IIED presents the same types of harm as the
criminalized intentional torts, society would be wellserved by assigning IIED the same criminal status.
Some modern theorists may argue that, given the
current state of the law, it is unnecessary to criminalize
IIED.18 According to these scholars, tort law has effectively absorbed the theories of retribution and deterrence
through the use of large civil sanctions.19 These sanctions serve a utilitarian purpose by regulating human behavior and satisfying the need for vengeance.20 Others,
however, argue that tort law primarily “prices” harm,
whereas criminal law serves to prohibit socially harmful
behavior.21 Consequently, the assignment of monetary
penalties as both retributive and deterrent in nature will
never compensate for the larger threat to individual liberty.22 According to those in the latter camp, in order to
safeguard against physical harm, it is important to instill
in society “a general fear which cannot be adequately
33
remedied by compensation.”23 Therefore, an issue arises
as to the appropriateness of extending criminal sanctions
to a harm that the law already redresses.24
This article will explore the appropriateness of criminalizing IIED. Part I will discuss the historical context
of civil and criminal remedies and evaluate their modern
application to intentional acts. Part II will explore the
limitations of IIED and analyze whether the harm
caused by IIED parallels the harm caused by intentional
criminalized torts. Part III will evaluate the appropriateness of criminalizing IIED. The article will conclude
that, given recent neuroscientific findings, IIED should
be criminalized.
I. Intentional Wrongs the Crime/tort Distinction
The common law distinction between modern
criminal law and tort law was predicated on the victim’s
desire for retribution.25 In the early common law, a victim could pursue justice for the same wrongful act either
through what is now considered tort law or through
criminal law.26 Forbidden actions were punishable by
the crown, as the King was said to have been wronged
by every impermissible act.27 In addition, individuals
could independently seek retribution from impermissible acts through the legal system, which was intended
to deter private physical retaliation.28 As such, whether
an action was brought in tort or in criminal law was
largely a function of the wronged parties’ preference.29
A.
Punishing Civil and Criminal Wrongs
The present distinctions between criminal and
tort law vary little from their early predecessors. Criminal wrongs harm society while civil wrongs harm individuals.30 Although, most jurisdictions have codified
criminal wrongs and enumerated specific punishments,
torts remain largely uncodified.31 Damages can be nominal, compensatory, or punitive,32 and the assignment of
each is left to the complete discretion of a judge or jury.33
Tort damage awards seek to achieve three fundamental goals: (1) to make the victim whole or as near
to whole as possible;34 (2) to compensate the victim for
additional pain or suffering inflicted by the wrong;35 and
(3) to deter wrongdoers from engaging in the same conduct in the future.36 Thus, tort damages do not solely
serve to regulate human conduct, but rather to place the
injured party in the same position he or she was in before the wrong occurred.
34
In contrast, criminal punishment serves to curtail
future undesirable conduct by reshaping societal
norms.37 In certain instances, criminal punishment may
result in the loss of liberty or finances. The legislature
is largely responsible for determining the range of punishment that may be assigned for a specific criminal
act.38 As such, judges have a degree of discretion within
these ranges to determine the punishment that is warranted in a given criminal case.39
During this process, a judge may consider several theories of punishment, including retribution and
deterrence. Retribution imposes punishment as a means
of societal revenge.40 Deterrence imposes individual
punishment as a disincentive to the individual and to
others from engaging in the same harmful conduct in
the future.41 These theories are designed to satiate a
community’s need for revenge and to assure conformity
to desirable social mores.
This judicial embrace of retribution and deterrence has blurred the line between criminal and tort law,
particularly within the area of damages awards. In recent years, tort law has incorporated the criminal theories of retribution and deterrence.42 Courts have been
more inclined to use tort awards to sanction undesirable
conduct and to help shape societal norms. For example,
in TXO Production Corp. v. Alliance Resources Corp.,43
the Supreme Court upheld the jury’s award of $19,000
in compensatory damages and $10 million in punitive
damages for slander, reasoning that “a substantial [civil]
award was required in order to serve the goals of punishment and deterrence.”44 The Court’s rationale has
been recognized by scholars as a bourgeoning relationship between civil and criminal law.45 John Coffee recently noted that “the dominant development in
substantive federal criminal law over the last decade has
been the disappearance of any clearly definable line between civil and criminal law.”46
Thomas Koenig and Michael Rustad have explicitly recognized that the criminal law principles of
retribution and deterrence have been assimilated into
tort law, ultimately coining the term “crimtort.”47 Crimtort is generally used to advance the notion that civil
sanctions can serve to regulate corporate wrongdoers.48
Financial deterrence at the corporate level is of great
value since loss of monies can threaten the financial
health, or even existence, of a particular business entity.49
Theorists have posited the existence of a retributive factor within the assignment of tort awards.50
George P. Fletcher’s notion of corrective justice supports
Winter 2009
this theory. Under corrective justice theory, “wrongful
acts create an imbalance in the equilibrium established
under criteria of ‘the geometric proportionality’ of distributive justice.”51 The wrongdoer “creates a shift in
resources from victim to the injurer.”52 In turn, “the injurer should be required to give half the imbalance as
payment to the victim” to restore the status quo.53 From
a purely economic perspective, corrective justice suggests that the wronged party is responsible for making
the injured party whole.54 According to this definition,
it is hard to see how the use of a civil award—viewed
from a corrective justice perspective—provides any deterrent effect. However, to the extent that a victim feels
satisfied that he or she is now whole again, corrective
justice has a large retributive aspect.55
Theorists’ evaluation of the use of punitive damages to support criminal theories of punishment has
played out in the courts, which, after the TXO Productions Corp. decision, have routinely assessed punitive
damages against defendants in civil cases as a means of
satiating a plaintiff’s need for retribution.56 In BMW of
North America, Inc. v. Gore,57 the Supreme Court “emphasized the constitutional need for punitive damages
awards to reflect (1) the ‘reprehensibility’ of the defendant’s conduct, (2) a ‘reasonable relationship’ to the
harm the plaintiff (or related victim) suffered, and (3)
the presence (or absence) of ‘sanctions,’ e.g., criminal
penalties, that state law provided for comparable conduct.”58
The Court, however, has recently begun to halt
the use of damage assessments as a means to punish.
Although the Court has yet to use the Eight Amendment
Excessive Fines Clause to limit punitive awards,59 the
Court has announced a series of cases that, under the
Due Process Clause, curtail a state or individual’s right
to collect unreasonably huge punitive awards. For example, in Honda Motor Co. v. Oberg,60 the Court ruled
that due process principles require judicial review of
punitive damage awards.61 In BMW of North America,
Inc. v. Gore, a 5-4 majority ruled that the Constitution
prohibits “grossly excessive punishment on a tortfeasor.”62 Most recently, in Philip Morris v. Williams,63 a
widow brought a suit against Philip Morris for negligence and deceit on behalf of her dead husband, a heavy
cigarette smoker.64 The Court considered the appropriateness of a large jury award and ruled in a 5-4 decision
that the Constitution’s Due Process Clause prohibits the
use of punitive damage awards to punish defendants for
harm inflicted on persons who are not parties to the
suit.65 Courts at the state level have rendered similar deCriminal Law Brief
cisions. For example, the New Jersey Supreme Court
recently ruled that the Punitive Damages Act (“PDA”)
did not permit a jury to consider general deterrence to
others when awarding punitive damages.66
This limitation on punitive damage awards as a
means of retribution or deterrence tacitly acknowledges
that its place lies most firmly within the confines of
criminal rather than civil law. Regardless of the use of
civil sanctions, a need remains for using criminal penalties to achieve the societal goals of conformity. Under
the theory that individuals are most likely to regulate
their behavior out of fear of humiliation or loss of liberty, criminal sanctions are an appropriate means to assure that individuals behave within the rules of society.
Robert Nozick has posited that in order to safeguard against physical harm, society must maintain “a
general fear which cannot be adequately remedied by
compensation.”67 Nozick’s notion is primarily based on
the retributive model.68 According to Professor Nozick,
criminal punishment is deserved under certain instances,
if not demanded.69 Professor Nozick demonstrates this
theory through a formula; punishment deserved = r * H,
where H is the magnitude of the wrongness or harm, and
r is the degree of responsibility.70 Blameworthiness is a
function of the value of the wrong done by the agent (H)
and the degree of the agent’s responsibility for the
wrongdoing (r).71 The value of r may range from no responsibility (0), as when a criminal defendant is not
guilty by reason of insanity, to full responsibility (1), as
when the defendant intentionally committed the crime.72
Professor Nozick’s theory is particularly applicable to intentional wrongs. According to the theories
of corrective justice and crimtort, the redistribution of
wealth from the intentional wrongdoer to the victim can
arguably coerce the wrongdoer into behaving properly.73
However, what is absent from both theories is the stigma
that is attached to criminal punishment; Prof. Nozick’s
theory properly accounts for the coercive value of
stigma. His formula indicates that the more responsible
the wrongdoer is, the greater the punishment deserved.74
To the extent that punishment is viewed on a sliding
scale—from probation to monetary obligations to a loss
of liberty—certainly the latter is the most compelling to
ensure social conformity. Defendants who commit torts
must balance the financial penalty against the personal
value gained from committing the wrong. In contrast,
criminal punishment stigmatizes the individual, thereby
imposing a larger punishment and a greater disincentive
to engaging in those particular acts.75
According to Professor Nozick, criminal punish35
ment is “a communicative act transmitting to the wrong- stead, proof of the plaintiff’s injury is mandatory, and
doer . . . how wrong his conduct was”;76 punishment will as such, is a prerequisite to liability.84 The act must be a
communicate clearly to the community that such con- voluntary act—one in which the actor chooses to enduct is intolerable.77 The deterrent value served by an gage.85 An involuntary act—conduct engaged in while
individual’s fear of stigmatization is often appropriate one is otherwise unconscious—is not sufficient.86 Thus,
as it may serve as a “system for public communication an individual who hits a child while driving a car due to
an epileptic fit does not commit a
of values.”78
Like two branches from
conscious act87 whereas one who
Tort
law
sanctions
canthe same trunk, the law has promakes a conscious choice to swing
vided for criminal and civil relief
not match the reputa- a fist does.88
Perhaps the most confusing
from intentional harms to the indition
of
criminal
aspect of this process is proving the
vidual. The sanctions for both
criminal and civil wrongs are unpunishment as an ef- actor’s desire to engage in the conduct such that it subsequently
derstandably blurred as similar
theories are often used to attribute fective means of regu- brings about the intended result, as
blame and assess compensation.
lating behavior. For opposed to intending the result itself. The Restatement (Second) of
Huge tort awards continue to usurp
this reason, society is Torts provides the best illustration
the role of retribution and deterrence, both of which were previ- well-served by the ex- of the element act. “[I]f the actor,
having pointed a pistol at another,
ously reserved for criminal
istence
of
both
criminal
pulls the trigger, the act is the
punishment. However, while tort
law can effectively prohibit indi- and civil definitions for pulling of the trigger and not the
impingement of the bullet upon the
viduals from repeating particular
the
same
intentional
other person.”89 If the act is to pull
types of conduct, the non-codified
the trigger, the intent would be the
ad hoc nature of tort law does little
wrongs.
actor’s desired goal that he or she
to accomplish the most important
role of communicating a system of shared values that wishes to achieve by pulling that trigger. According to
define the boundaries within which individuals should Prosser, intent in this context means
live their lives. Tort law sanctions cannot match the rep(1) . . . a state of mind (2) about conseutation of criminal punishment as an effective means of
quences of an act (or omission) and not
regulating behavior. For this reason, society is wellabout the act itself, and (3) it extends not
served by the existence of both criminal and civil defionly to having in the mind a purpose (or
nitions for the same intentional wrongs.
desire) to bring about given conseb. the Criminalized torts: Assault,
quences but also to having in mind a belief (or knowledge) that given
battery and False Imprisonment
consequences are substantially certain to
result from the act.90
William Prosser identified four “dignitary torts,”
which are intentional harms against the individual: assault, battery, false imprisonment, and intentional inflic- In order to prove intent, the actor must show that the detion of emotional distress.79 These wrongs all require fendant chose to commit a particular action, and in so
proof that the defendant chose to engage in the tortious doing, intended or knew with substantial certainty that
conduct and that, by engaging in such conduct, intended such an action would bring about the undesired result.91
or knew with substantial certainty that the conduct The actor who pulls the trigger for the desired purpose
would invade an individual’s right to quiet enjoyment.80 of causing harm to a particular person is said to intend
Three of these torts—assault, battery, and false impris- such conduct.92 The actor who pulls the trigger for enonment—also exist in criminal law.81
joyment purposes only, but does so in a crowded area,
Much has been written about the conduct or el- is also said to have intended such conduct for purposes
emental act of intentional torts.82 Unlike criminal law, of proving intentional torts since the actor knew with
the act itself is not merely an element of the tort.83 In- substantial certainty that such conduct would bring
36
Winter 2009
(b) a harmful contact with the other person directly or indirectly results,104 or (c)
he acts intending to cause a harmful or
offensive contact with another or third
person or an imminent apprehension of
such a contact,105 and (d) an offensive
contact with the other person directly or
indirectly results.106
about the undesired wrong.93 This requirement of intent
is the prerequisite for all intentional torts.94
i.
The Intentional Tort of Assault
An actor is liable for tortious assault if “he acts
intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such contact, and (b) the other is
thereby put in such imminent apprehension.”95 In other
words, an assault is the threat of harmful or offensive
contact coupled with the present ability to commit a
harmful or offensive contact. Assault occurs in the absence of contact; therefore, assault would be actionable
on the basis of a mental, rather than physical, type of
harm.96
Proof of assault merely requires some apprehension of fear on the part of the plaintiff; physical harm is
not an element of the tort. The fear need not be extreme;
proof of fright or humiliation suffices to support a cause
of action.97 For example, standing within striking distance of another while shaking a stick is assault; shaking
that same stick with the same force behind the victim,
who is therefore unaware of such actions, is not.
Even the most offensive and off-putting words,
alone, are never sufficient to support an assault claim,
regardless of the mental anguish the words may impose.98 Thus, in Lay v. Kremer,99 the defendant, while
fighting over a parking spot, called a woman a “motherfucking nigger”* and a “bitch”; the trial court acquitted
the defendant under the premise that “mere words [did]
not constitute assault.”100 Assault actions are generally
successful, it seems, when there is proof that the plaintiff
suffered some degree of fear or mental anguish resulting
from his or her belief that the defendant had a present
capacity to inflict physical harm.101
ii.
The Intentional Tort of Battery
Battery is an assault coupled with contact that is
harmful or offensive.102 The Restatement (Second) of
Torts has divided battery into two categories: one in
which harmful contact results, and another in which fensive contact results.103 According to the Restatement, an
actor is liable for battery if:
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person or an imminent apprehension of such a contact and
Criminal Law Brief
Battery requires proof of the exact same intent
as assault.107
The difference lies in the contact. Assault occurs
in the absence of contact, whereas battery requires some
sort of contact in order to be actionable.108
Another relevant distinction exists between the
two wrongs. In order for assault to be actionable, the
plaintiff must be aware of the threat.109 However, battery
requires no awareness on the part of the plaintiff. Thus,
if a defendant raises a stick behind a plaintiff’s back and
the stick hits the plaintiff, even if the plaintiff did not realize the stick was raised, the defendant’s conduct is actionable under battery.
Battery is not necessarily considered a crime of
mental anguish, primarily because the element of
harm—or at least contact—is required for the crime.110
Courts have, however, considered offensive contact actionable when the plaintiff suffered humiliation or embarrassment.111 This recovery for embarrassment has
extended the boundaries of battery to include emotional
injury, in addition to physical injury.
iii.
The Intentional Tort of False Imprisonment.
False imprisonment, sometimes referred to as
false arrest, is the intentional deprivation of another’s
liberty. According to the Restatement (Second) of Torts,
false imprisonment occurs when an actor intends to
“confine another within boundaries fixed by the actor,
and his act directly or indirectly results in such a confinement of the other, and the other is conscious of the
confinement or is harmed by it.”112
While common law cases permitted an action for
false imprisonment in instances where the plaintiff was
unaware of his confinement, the current formulation requires proof that the plaintiff realize his liberty is restrained.113 Thus, false imprisonment, which is an
infringement on the plaintiff’s belief that he is not free
to exercise his will to move about—like assault—is a
wrong against mental anguish.114
The intent element of false imprisonment is very
*The author and the editors deliberated whether to redact language from cases that many people
will find offensive. We decided to pubish the words in full, as best support for the articles’s larger
claims.
37
similar to that of assault and battery.115 In order to be responsible for false imprisonment, the defendant must
know that he is confining another or be substantially certain that his conduct will result in confinement.116 Mental anguish is, in essence, the chief component of false
imprisonment. Under the Restatement formulation, the
plaintiff is not required to suffer any type of physical
harm; rather, the defendant must only instill in the plaintiff a sense of loss of freedom to move about.117 There
must only be a sense of boundaries. Such boundaries
may be “large or small, visible or tangible, or through
real, still conception only.”118 Thus, in Allen v. Frome,119
the court held that false imprisonment occurred in a city
in which the defendant felt unable to leave town.120 Similarly, courts have found that one can be falsely imprisoned in a car that moves about.121
C. the Corresponding Crimes
corresponds quite closely with the MPC’s definition of
purposeful and knowingly. Thus, proof of the actor’s
awareness is virtually identical in each instance.
i.
The Crimes of Assault and Battery
Assault and battery—common law misdemeanors—exist today as statutory crimes in all American jurisdictions.132 Although the two crimes are
generally said in one breath, it is important to note that
they are actually distinguishable and are divided in the
same way as their tort counterparts.133 Like the tort, the
crime of battery requires an injury or offensive touching,134 whereas assault requires no physical contact.135
a. The Crime of Assault
Various statutory formulations of the crime of
assault exist.136 These statutes can be divided into two
general categories: assault as an intentional scaring or
assault as an attempted battery.137 Assault, as an intentional scaring, is the true codification of civil assault.138
For this type of assault, one is criminally responsible
when he or she carries out some behavior that causes an
apprehension of immediate bodily harm with the intent
to cause such apprehension.139 Pointing a gun at another
individual is sufficient to establish common law assault.140 Under this formulation, assault criminalizes the
imposition of mental fear or anguish.
In some states, evidence of mental anguish can
support the personal injury requirement of assault141 and
can include evidence that the victim was upset during
or after the assault, needed subsequent psychological
treatment, was unable to conduct a normal life, feared
for the his or her safety, and maintained continuing feelings of vulnerability.142
The MPC formulation of assault constitutes a
misdemeanor in three circumstances: where the actor attempts to cause or purposely, knowingly, or recklessly
causes bodily injury; negligently causes bodily injury
with a deadly weapon; and attempts by physical menace
to put another in fear of imminent serious bodily harm.143
This third circumstance incorporates the civil notion of
assault into the criminal law, as had been done in a majority of jurisdictions at the time the MPC was drafted.144
Criminal law assigns blame to those who engage
in intentional conduct. Like tort law, criminal convictions require proof that the defendant chose to engage
in conduct and that, by engaging in that conduct, intended or knew with substantial certainty that the conduct would result in a wrong against society.122 While
criminal law also assigns punishment to those who acted
recklessly or negligently,123 the law seems to reserve the
greatest punishment for those who engage in intentionally wrongful conduct.124
Much has been made of the intent levels in criminal law. Early on—and still in many jurisdictions—intent was divided between specific and general intent.125
Courts define specific intent as an actual purpose or goal
to engage in a particular type of conduct or a deliberate
choice to ignore a certainty of harm.126 General intent
translates into a sense of risk-taking or carelessness on
the part of the defendant.127
The Model Penal Code (“MPC”) has created
four classifications of an actor’s mindset as a means to
better delineate between specific and general intent: purposeful, knowing, reckless, and negligent.128 “Purposeful” is defined as a conscious goal to engage in
particular conduct,129 while “knowing” requires proof
that the defendant was substantially certain that such a
result would occur from a particular type of conduct.130
The torts of assault, battery, and false imprisonment require proof of intent similar to general intent in that the
b. The Crime of Battery
actor is responsible if he or she intended the conduct or
knew with substantial certainty that such an outcom
Just as in tort law, the common law crime of batwould occur.131 The Restatement’s definition of intent tery requires harmful or offensive touching.145 Battery,
38
Winter 2009
like assault, requires proof of an act or an omission and harm resulting from it.”159 Stated another way, IIED oca mental state.146 Many jurisdictions allow for both in- curs when “[o]ne who by extreme and outrageous contentional and unintentional battery.147 Intentional battery duct intentionally or recklessly causes severe emotional
typically requires proof of purposeful conduct.148 For distress to another is subject to liability for such emoexample, one who—with intent to injure—acts or omits tional distress, and if bodily harm to the other results
to act when he has a duty to act, which is the legal cause from it, for such bodily harm.”160 IIED sanctions those
of an injury, is guilty of criminal battery.
whose conduct is so outrageous that it brings about menBattery is not a separate crime under the MPC, tal and/or physical pain and suffering.161 Additionally,
which has synthesized the common law crimes of may- IIED is the only intentional tort that allows recovery
hem, battery, and assault into a single offense.149 One from one whose goal is limited to creating emotional
who attempts to cause serious bodily injury or one who havoc.
causes such injury purposely, knowingly, or recklessly,
The tort of IIED is relatively new, as compared
and under circumstances manifesting an extreme indif- to the traditional common law torts of assault, battery
ference to the value of human life is said to commit bat- and false imprisonment, all of which date back to before
tery.150
the Sixteenth Century.162 Wilkinson v. Downton,163 a late
The MPC codifies civil battery and calls it “ag- nineteenth century case, presented the first instance
gravated assault.”151 According to the MPC, a person is when a court allowed recovery for a woman, against
whom a mean-spirited practical joke
guilty of aggravated assault if he
was played. As a consequence of
“attempts to cause serious bodily inThe tort of IIED is
the joke, the woman suffered “viojury to another, or causes such injury
lent shock to her nervous system,
purposely, knowingly or recklessly
relatively new, as
producing committing and other
under circumstances manifesting
more serious and permanent physiextreme indifference to the value of compared to the tra152
human life.” The level of harm ditional common law cal consequences entailing weeks of
necessary to show “serious bodily
suffering and incapacity . . . .”164
torts
of
assault,
batThe court allowed the plaintiff to reinjury” varies by jurisdiction, and
can range from “reddish marks tery and false impris- cover for the harm she suffered as a
result of the defendant’s practical
around the neck” from a potential
onment,
all
of
which
153
joke.165
choking to extreme physical pain
Almost 150 years after
and disfigurement.154
date back to before
Wilkinson, the tort of IIED appeared
the
sixteenth
century.
c. The Crime of False Imin a 1948 supplement of the Restateprisonment
ment of Torts.166 The California
Supreme Court first applied the ReFalse imprisonment is the unlawful restraint of statement’s definition four years later when it decided
another’s liberty.155 At common law, the offense could the landmark case of State Rubbish Collectors Ass’n v.
be committed by mere words.156 The gravamen of the Siliznoff.167 Courts across the country followed Califorcrime is that the victim believes he is unable to remove nia’s lead, and today every state has recognized the inhimself from the control of the defendant.157 Mere words dependent IIED tort and “adopted [the] Restatement
are insufficient to constitute false imprisonment if the (Second) of Torts section 46 in some form.”168
person to whom they are spoken is not deprived of freeLike assault, battery, and false imprisonment, an
158
dom of action.
individual is responsible for IIED if it is his intention to
inflict severe emotional distress or he knows with substantial certainty that severe emotional distress will arise
II. the NoN-CrImINAlIzeD tort: INteNtIoNAl
as a result of such conduct.169 Under the Restatement
INFlICtIoN oF emotIoNAl DIstress (IIeD)
approach, the defendant must not only intentionally
cause severe emotional distress, but such conduct must
According to the Restatement, one who inten- also be deemed “extreme and outrageous.”170 The Retionally causes severe emotional distress to another is statements have never attempted to provide a definition
liable “(a) for such emotional distress, and (b) for bodily of “outrageous” conduct, stating rather that something
Criminal Law Brief
39
is outrageous if “the recitation of the facts to an average
member of the community would . . . lead [the person]
to exclaim, “Outrageous!”171 Scholars and courts, however, agree that liability for this tort is reserved for the
severest cases where the defendant’s conduct goes “beyond all possible bounds of decency . . . to be regarded
as atrocious, and utterly intolerable in a civilized community.”172 “Liability. . . does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or
other trivialities.”173 As a result, severe emotional distress can be found only when “the distress inflicted is
so severe that no reasonable person could be expected
to endure it.”174
the other intentional torts, it would seem consistent to
criminalize IIED. Criminalizing IIED would further the
retributive and deterrent goals of punishment, particularly at a time when new technology communicates outrageous and even horrendous conduct for which there
seems no viable punishment in criminal law. Society
will benefit from criminalizing the intentional use of extreme and outrageous conduct. Such conduct is rare, but
to the extent that it results in intolerable wrongs, it is
worthy of criminal punishment.
III. A CAll to CrImINAlIze INteNtIoNAl
INFlICtIoN oF emotIoNAl DIstress
The proposed criminalization of IIED would require proof of the same type of intent as the other criminalized intentional torts. 177 Like assault, battery, and
false imprisonment, the state can only seek punishment
for IIED, and a plaintiff can only recover for the IIED,
upon proof that the defendant intended to cause the
harm or was substantially certain that harm would result
from his conduct.178 But while the intent and the harm
are the same, the act of IIED, use of extreme and outrageous conduct, is distinct from the other criminalized
intentional torts.
Once the conduct is proven, it is incumbent upon
the prosecution to prove that harm resulted from that
conduct. Harm can be both mental and physical. The
mental anguish that is punishable through the criminalized torts of assault and false imprisonment is equally
present in intentional infliction of emotional distress.179
A tortfeasor is only responsible for IIED if his actions
were the proximate cause of a psychic injury.180 Prosser
calls both assault and false imprisonment crimes of
mental anguish. It seems, then, that mental anguish,
which the law seeks to curb, is equally present in
IIED.181
The pain inflicted through IIED can result in the
type of harm criminalized in battery. The crime of battery involves proof of direct physical harm.182 Harm can
include a gunshot wound,183 a kick upon another,184 or
something as slight as intentionally blowing smoke in
another’s face.185 When recovering for IIED, many jurisdictions require proof of severe physical manifestations of emotional harm.186 In doing so, the law
recognizes that extreme and outrageous conduct can indeed cause the type of harm that is recoverable through
the other criminalized torts.
New scientific research supports the conclusion
that the extreme and outrageous verbal conduct meted
The modern formulation of IIED permits a
plaintiff to recover for injuries resulting from a defendant’s intentional use of extreme and outrageous conduct if that conduct results in mental anguish or physical
harm. A logical formulation of the proposed crime
would be patterned after the 1948 Restatement of Torts.
Thus, an actor would be subject to criminal prosecution
if he purposely or knowingly caused emotional distress
through extreme and outrageous conduct thereby causing mental anguish or psychic injury. The conduct must
be so extreme as to go “beyond all possible bounds of
decency,” and “the mental anguish suffered by plaintiff
[must be] serious and of a nature that no reasonable person could be expected to endure it.”175
Like the criminalized torts of assault and false
imprisonment, the criminalized version of IIED would
penalize a defendant when a victim suffers emotional or
psychic damage as a consequence of the defendant’s intentional conduct. Criminalized IIED would also result
in the same type of physical harm that is required for
proof of the prima facie elements of the criminalized tort
of battery. The commonality of the harm caused by a
different type of conduct supports criminal punishment
for IIED.
Neuroscientific evidence supports the conclusion that verbal assaults can manifest themselves in
physical pain.176 Thus, where one assaults another with
outrageous verbal comments, the plaintiff might ultimately experience physical pain. This intentional infliction of physical pain is the type of harm that society
seeks to punish through the crime of battery.
Since IIED creates the same type of harm as society has sought to redress through criminalization of
40
A.
similarities between IIeD and the
Criminalized Intentional torts
Winter 2009
out through verbal assaults can inflict the same type of
physical harm that is prohibited by criminal battery.
Neuroscientific studies show that verbal abuse can bring
about physical symptoms, which in turn cause physical
pain.187 Actual measurable neurochemical changes can
occur in the amygdala—the part of the brain that performs a primary role in processing emotional reactions—when an individual is verbally assaulted or
experiences some other type of emotional trauma.188 The
amygdala instantly responds by inducing a series of
physiologic reactions including rapid heart rate, palpitations, sweating and increased blood flow to large muscle groups.189 These physiological changes in the brain,
which occur congruently with emotional harm, become
a form of physical pain, from which the victim clearly
suffers.190
Studies demonstrating the relationship between
psychological and verbal abuse and disorders such as
depression, anxiety, and post-traumatic stress disorder
(PTSD) further support the conclusion that IIED can result in the type of physical harm which criminal law
seeks to curb by punishing for battery or aggravated assault. A person suffering from depression may also suffer from “persistent aches or pains, headaches, cramps
or digestive problems . . .” according to the National Institute of Mental Health.191 Exacerbating this disease
through a verbal assault can result in more severe physical symptoms that often accompany anxiety disorders
include “fatigue, headaches, muscle tension, muscle
aches, difficulty swallowing, trembling, twitching, irritability, sweating, nausea, lightheadedness, having to go
to the bathroom frequently, feeling out of breath, and
hot flashes.”192
In other instances, while the outrageous conduct
of IIED might not immediately cause physical pain, specific studies confirm that, despite the non-physical nature of verbal abuse, abuse from IIED can be as
damaging as physical harm.193 In 1990, Psychologists
Nicole M. Capezza and Ximena B. Arriaga conducted a
study, in which they found that seventy-two percent of
234 female victims of both physical and psychological
abuse indicated that they were more negatively impacted by the psychological abuse than the physical
abuse.194 Regarding their findings, the authors stated,
“[t]he results obtained in the present study clearly indicate that psychological [abuse] is, with some variations,
as detrimental to women’s mental health as is physical
violence.”195
The seemingly similar requirements of intent
and harm beg the question of why it would be necessary
Criminal Law Brief
to criminalize IIED. The need for punishment lies in
the fact that the act element of IIED is markedly different from assault, battery and false imprisonment; more
importantly, punishment for this type of act does not really exist in most jurisdictions.196
Assault and battery penalize the actor who intends to cause direct physical harm. Pointing a gun and
missing satisfies the act element of assault. Pointing a
gun and hitting satisfies the act element of battery or aggravated assault. The act element of false imprisonment
is satisfied by the actor who voluntarily chooses to confine another or to make one feel confined. For example,
locking car doors and speeding can satisfy the act element of false imprisonment.197
The act element of IIED requires proof of extreme and outrageous conduct. In Rissman v. Chertoff,
a transportation safety expert whose superiors constantly
screamed at him for being too thorough and “scolded
[him] for hours as if he were a terrorist in a poorly written ‘B’ movie script” provided sufficient evidence to
prove IIED.198 With this fact pattern, the courts could
not find an actionable claim for assault, battery or even
false imprisonment. Only if IIED were criminalized
could the TSA supervisors be punished for their behavior.
In Gomez v. Hug,199 a supervisor at a county fairgrounds, upon seeing an employee enter his office, said
“[w]hat is that fucking spic doing in the office?” 200 “A
fucking Mexican greaser like you, that is all you are.
You are nothing but a Mexican greaser, nothing but a
pile of shit.”201 The badgering continued and, as a consequence, the victim suffered mental anguish that resulted in “serious medical problems” that precluded him
from working.202 Under these facts, a state would be unable to punish for assault. It is long held that assault is
not actionable unless the victim is placed in imminent
apprehension of immediate bodily harm. Here, the verbal lashings and demeaning behavior does not give rise
to a fear of harm. Battery would also not be actionable
since defendant did not touch or intend to touch the victim. Nor would false imprisonment apply as there is no
evidence that the victim was unable to escape. In this
scenario, the defendant could not be criminally punished. If IIED were criminalized, however, the defendant could be subjected to penalties, as a reasonable jury
might conclude that his conduct was extreme, outrageous and beyond the bounds of decency.
b. Advancing the Goals of Punishment
41
or cyber bullying. Criminalizing the use of spoken and
written words that cause severe damage to another
would fall within society’s goal to provide citizens with
a reasonable expectation of quiet enjoyment and liberty.
Verbal abuse is not afforded the same treatment
under the criminal law as physical abuse.212 Many jurisdictions do not criminalize verbal abuse. In those that
do, it is under the guise of harassment.213 Yet verbal
abuse is a serious assault on one’s personal well-being.214
Additionally, studies confirm that verbal abuse often
leads to physical abuse.215 Criminalizing verbal abuse
would serve to prevent the commission of a greater
i. What to Punish
crime.216
Jurisdictions criminalize a variety of acts as a
Applying the proposed criminal statute for IIED,
the perpetrators in Rissman and Hug could be subject to means to prevent that future harm. Conspiracy, stalking,
criminal punishment. In the first hypothetical, the su- and loitering are all inchoate crimes that allow police to
constitutionally intervene potenpervisor hurled racial epithets at the
tially greater criminal activity.217
employee to the point where the emBy
adopting
the
For instance, an agreement to comployee suffered physical and emotional harm.203 A significant number
newest criminalized mit a criminal act, which is conspirof states and federal courts have held
acy, can be prosecuted on its own,
intentional
tort,
juristhat racial epithets shouted by one in
even if the agreed-upon, contema position of power over another are
plated crime never comes to
dictions would be
evidence of extreme outrageous confruition.218 When considering punsending
a
message
ishing verbal abuse, IIED could be
duct.204 In Alcorn v. Anbro Engineer205
ing, Inc., the Supreme Court of
that conduct which seen as a similar inchoate act, alCalifornia held that an employee had
lowing police intervention before
sufficiently alleged IIED because his mentally infringes on the verbal violence translates into
supervisor shouted racial epithets and others’ freedom from physical harm.
fired him.206 The court found it sigCriminalizing IIED would also
harm
is
intolerable.
nificant that the person harassing the
provide meaningful punishment to
plaintiff was “standing in a position
the crime of cyber stalking. In Lori
or relation of authority over plaintiff.”207 In Shuman v. Drew’s case, the defendant imparted words, that on their
American Home Assurance Co.,208 a federal district court face, were seemingly innocuous. The defendant secured
found that a defendant who “repeatedly made racial a “My Space” page under a false name and then preslurs directed at Plaintiff based upon his Arab ancestry, tended that she was a teenage boy with a crush on the
calling him names such as “Fucking Arab” and “Fuck- 13 year-old girl. 219 The woman later sent spiteful mesing Carpet Salesman,” which slurs “caused, and were sages to the girl, including one that said “the world
intended by to cause, Plaintiff’s emotional distress” would be a better place without you.”220 A reasonable
committed IIED.209 Under this analysis, the defendant jury could find under the circumstances that Ms. Drew’s
in Hug used language outrageous enough to be action- conduct went beyond the bounds of decency. In fact,
able.
new accounts report that the jury wanted to convict Ms.
The plaintiff in Hug also presented evidence of Drew of felonies that would allow punishment of up to
serious medical problems. Many jurisdictions require twenty years in prison.221 However, the available laws
proof of a physical manifestation of emotional harm.210 did not support their desired goal.222
Assuming there was significant medical evidence to
While internet communication is not criminal211
show a manifestation of physical harm, the state would ized under IIED, internet communication can lead to a
be able to prove IIED.
claim for a criminal case of harassment. For example,
Criminalizing IIED would also permit punish- in the instance where a woman posted a call for sexually
ment in other instances, including verbal domestic abuse explicit favors and listed a neighbor’s phone number,
Criminalizing IIED would advance the goals of
society’s interest in curbing harmful conduct. By adopting the newest criminalized intentional tort, jurisdictions
would be sending a message that conduct which mentally infringes on others’ freedom from harm is intolerable. Punishment would allow society to seek just
deserts from those who engage in acts that are outrageous by traditional standards. Moreover, punishing
IIED would send a message to individuals and the general population that such conduct is intolerable.
42
Winter 2009
the Suffolk County New York police filed charges of harassment against the woman.223 Under New York state
law, “[a] person is guilty of aggravated harassment in
the second degree when, with intent to harass, annoy,
threaten or alarm another person, he or she . . . (b) causes
a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously
or otherwise, by telephone, by telegraph, or by mail, or
by transmitting or delivering any other form of written
communication, in a manner likely to cause annoyance....”224 Here, the woman could be successfully prosecuted for harassment since she initiated phone calls
likely to cause annoyance. The maximum punishment
for this crime is up to one year in prison. 225 However,
the permissible penalty should be more severe.
The type of harm caused in this instance, assuming that the harm resulted in severe mental harm, would
be more on par with New York’s second degree assault
statute, which criminalizes conduct when a person intends to and actually causes serious physical injury and
causes such injury. Second degree assault is punishable
as a class D Felony, for a term not to exceed seven
years.226 Thus, even though the mental anguish caused
by the harassing phone calls could be the equivalent to
physical harm, New York’s second degree assault statute
would not allow for such conduct to be prosecuted as a
second degree assault. Absent criminalization of IIED,
the offender in this case would only be sentenced to a
maximum of one year in prison, no matter how severe
the mental harm.
Criminalizing IIED would provide a means to
impose a similar punishment in this similarly harmful
situation. If the harassing phone calls caused the neighbor to suffer from either emotional trauma or a physical
manifestation of that trauma on a level as contemplated
by second degree assault, then the offender could be
prosecuted under a scheme of criminal IIED. Punishing
this kind of intentional conduct to the same degree assecond degree assault for intentional conduct that inflicts a similar type of harm, would serve to further the
principles of our criminal justice system by communicating that this type of conduct is so intolerable that it
carries with it a threat of significant punishment.
can criminal justice system. Two theories largely govern the reasons for assessing punishment: retribution and
deterrence.227 Criminalizing IIED would advance each
of these theories.
a.
Retribution
Application of Professor Nozick’s equation for
evaluating the instances appropriate for retribution supports the criminalization of IIED. As previously noted,
criminal punishment deserved = r x H, where H is the
magnitude of the wrongness or harm and r is the degree
of responsibility.228 The high magnitude of harm and the
defendant’s responsibility in the intentional outrageous
conduct of IIED highlight the well-deserved need for
retribution against such conduct.
The r is this equation is easily satisfied. People
are responsible for IIED only if they intend to commit
the outrageous conduct that causes harm or they know
with substantial certainty that such conduct will cause
another to suffer from IIED.229 This intent translates into
a conscious or willful desire to bring about a harmful
result.230 That they chose to engage in such conduct reflects the high level of responsibility on their part.
The law tends to increase the severity of punishment based on a defendant’s willfulness.231 Homicides
illustrate this point most clearly. One who intends to
kill by design is guilty of murder, a crime punishable by
life in prison or even death.232 Thus, an individual who
aims his car at someone standing on the street with an
intention of killing that person is said to be the most responsible and therefore the most deserving of punishment. Similarly, one who speeds through a crowded
school zone at three o’clock in the afternoon is also, in
many jurisdictions, responsible for the and deserving of
the charge’s maximum punishment for the death of another.233 Although this person had no intent of killing a
particular person, he knew with substantial certainty that
he would likely kill someone as a result of his conduct.234
In contrast, one who speeds through a school zone at
three o’clock in the morning is likely to be held only responsible for manslaughter or reckless homicide.235 In
this instance, the individual is said to have only been
aware of a slight risk that someone could die as a result
ii. Why Punish
of his conduct. Because he only engaged in a risk, society is willing to mete out less punishment.236 In most
Given that IIED causes the same type of harm jurisdictions, manslaughter is punishable by five to fifas assault, battery, and the other intentional torts, the teen years in prison.237
issue becomes whether criminalizing IIED would furIIED also imposes the same type of harm as the
ther the principles of punishment that drive the Ameri- other intentional torts, thus the H in Nozick’s equation
Criminal Law Brief
43
is as compelling for IIED as it is in other tort-based
crimes. Particularly, IIED shares the sense of mental
anguish that assault and false imprisonment criminalize.238 As noted above, psychological or verbal abuse
can be as damaging as any physical type of harm.239 Developments in neuroscience indicate a strong link between verbal assault and emotional harm.240 This high
degree of provable physical harm meets the H prong of
Nozick’s formula. Therefore, the high magnitude of
harm to the victim and the strong degree of responsibility on the part of the defendant compel criminalization
of IIED.
Nozick’s theory is ideal for cyber-stalkers. Individuals who write directed e-mails or set up false accounts do so with the highest level of intention. The
harm cyber-stalkers cause can go far beyond annoyance
and may rise to the level of death. Under Nozick’s theory, such conduct is most suitable for punishment because H, or harm, is at its greatest.
b.
Deterrence
Criminalizing IIED is equally supported by the
theory of deterrence. Deterrence advocates that an individual be punished as an example either to himself or
to others because the individual’s conduct cannot be tolerated. Ms. Drew intentionally caused a child to suffer
by creating a fake internet “friend” to lure the girl in and
then trick her, acting in a way that society should discourage. Her actions caused horrible public outcry, in
part because of the unnecessary and irreversible consequences of her actions and in part because there were
few criminal laws under which she could be punished.242
To the extent that one assumes that deterrence works to
encourage members to conform to society’s laws,243 punishing this woman at the criminal level could deter others from committing similar harmful acts.
Criminalizing IIED as an inchoate crime would
serve the same deterrent value as assault. As noted
above, the law criminalizes many inchoate crimes as a
means of preventing more serious crimes that could result from an individual’s conduct. The MPC’s formulation of assault and battery is an example of the use of
criminalization as prevention. The law permits the punishment of those who attempt to cause the physical injury required for proof of battery by criminalizing an
attempted batterer (for example, assault).244 Those who
subscribe to the theory of crimtort, and even many who
do not, might argue that over-criminalization already exists and that there is no need to create new crimes.
44
Crimtort has merit, particularly as it applies to a defendant corporation, where one is unable to single out an
individual for punishment. However, a loss of liberty is
much harsher than a loss of finances. The criminal justice system can, through imposition or threat of jail time,
serve to curb individuals’ conduct to a much greater degree than pecuniary punishment.
IV.
CoNClusIoN
Scientific and technological advances in the way
we currently live our lives mandate that jurisdictions
should grant IIED the same criminal status that it grants
other criminalized intentional torts. Words hurt. The
law punishes those who inflict pain. The punishment
should be meted out regardless of whether the pain originates through a physical force or through verbal or written words.
Criminalizing IIED provides the retributive
value of satiating those who are injured by others’
choice to bully, and it serves the deterrent value of warning others that the use of words, whether typed or
shouted, is intolerable and prevents words from escalating to a more serious physical harm. There is a void in
our current criminalization scheme, left empty by the
failure to recognize that technology makes it easier to
harm and that a word can cause as much pain as a punch.
Criminalizing IIED would fill that void.
Addendum
On January 5th, the BBC reported that members
of French President Nicolas Sarkozy’s ruling party proposed a measure that would criminalize intentional infliction of emotional distress.245 The proposed measure
would assess criminal penalties including jail time
against those who psychologically or verbally abuse
their spouse or live-in partner by insult, including repeated rude remarks about a partner’s appearance, false
allegations of infidelity, and threats of physical violence.246 The French parliament is expected to approve
the legislation in February. If passed, the law should be
in place six months later. If passed, the bill would be
the first of its kind.247
See OFFICE OF MINNESOTA ATTORNEY GENERAL LORI SWANSON, PREVENT
CYBERBULLYING AND ONLINE HARASSMENT,
http://www.ag.state.mn.us/Brochures/pubCyberbullyingOnlineHarassment.pdf.
2
Prezioso v. Thomas, No. 991675, 2000 WL 472874 (4th Cir. Apr. 25,
1
Winter 2009
2000); Erwin v. Milligan, 67 S.W.2d 592 (Ark. 1934); Daluiso v. Boone,
71 Cal. 2d 484 (1969); Emden v. Vitz, 198 P.2d 696 (Cal. Dist. Ct. App.
1948); Tate v. Canonica, 5 Cal. Rptr. 28 (Ca. Ct. App. 1960); Ford v.
Hutson, 276 S.E.2d 776 (S.C. 1981).
3
Jennifer Wriggins, Domestic Violence Torts, 75 S. CAL. L. REV. 121,
136 (2001) (citing to Merle H. Weiner, Domestic Violence and the Per Se
Standard of Outrage, 54 MD. L. REV. 183, 189 n.16 (1995)) (“[S]ome activity that is tortious, such as conduct causing intentional infliction of
emotional distresses, is not criminal.”).
4
See generally Kenneth Mann, Punitive Civil Sanctions: The Middle
Ground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1806 n.
36 (1992) (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF
TORTS 22 (5th ed. 1984) (citations omitted)) (“Empirically, as opposed to
paradigmatically, civil and criminal law overlap. Civil law includes
causes of action for intentional acts; criminal law includes strict and negligent liability. Therefore, no true empirical difference exists between
civil and criminal law with respect to the range of mental states resulting
in liability. However, most criminal cases require proof of subjective
and objective liability, whereas most civil cases require proof only of objective liability. Therefore, we say that the paradigmatic task of the civil
law is to compensate for damages caused in the normal conduct of
everyday life, usually without regard to actual knowledge or intent.
Thus, the distinctive character in the division in the paradigms lies in the
requirement of attention to the subjective state of mind in the conventional criminal type.”).
5
Kim Zetter, Lori Drew Not Guilty of Felonies in Landmark Cyberbullying Trial, WIRED, Nov. 26, 2008, available at
http://www.wired.com/threatlevel/2008/11/lori-drew-pla-5.
6
United States v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009).
7
Id.
8
Id. at 452–53.
9
Id. at 468.
10
See Alexandra Zavis, Judge Tentatively Dismisses Case in MySpace
Hoax That Led to Teenage Girl’s Suicide, LOS ANGELES TIMES, July, 2,
2009, available at http://latimesblogs.latimes.com/lanow/2009/07/myspace-sentencing.html.
11
See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS (West Publishing Co. 4th ed. 1971) (1941); see also FOWLER V. HARPER & FLEMING
JAMES, JR., THE LAW OF TORTS (2d ed. 1956).
12
See Prosser, supra note 11.
13
Id.
14
See RESTATEMENT (FIRST) OF TORTS § 46 (1948).
15
See id. at §§ 21, 35.
16
See id. § 13.
17
See infra note 187.
18
See Richard A. Epstein, The Tort/Crime Distinction: A Generation
Later, 76 B.U. L. REV. 1 (1996) (citing RICHARD EPSTEIN, CRIME AND
TORT: OLD WINE IN NEW BOTTLES, ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION AND THE LEGAL PROCESS, 231 (Randy Barnett & John
Hagel III, eds., 1977)); see also Erik Luna, The Over Criminalization
Phenomenon, 54 AM. U. L. REV. 703 (2005).
19
See Luna, supra note 18, at 712.
20
See Andrew R. Klein, Causation and Uncertainty: Making Connections in a Time of Change, 49 JURIMETRICS J. 5, 8 (2008) (quoting H.L.A.
Hart & Tony Honoré, CAUSATION IN THE LAW (2d ed. 1985)).
21
See John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71
B.U. L. REV. 193, 193–94 (1991) (discussing the inherent purpose of
criminal law to embody society’s moral values and its incompatibility
with the balancing between public and private interests in which tort law
engages).
22
See Epstein, supra note 18, at 8.
23
See Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR 1 (2009), available at
http://www.columbialawreview.org/Sidebar/volume/109/1_Simons.pdf.
Criminal Law Brief
See Coffee, supra note 21. See also Luna, supra note 18, at 703.
See Epstein, supra note 18, at 11–12. For a good understanding of the
evolution of criminal and tort law, see FOWLER V. HARPER ET AL.,
HARPER, JAMES AND GRAY ON TORTS 304 (Aspen Publishers 3d ed. 2006).
26
See Epstein, supra note 18, at 14.
27
4 WILLIAM BLACKSTONE, 4 COMMENTARIES *2, *5.
28
See Epstein, supra note 18, at 12–13.
29
See id. at 11; David J. Seipp, The Distinction Between Crime and Tort
in the Early Common Law, 76 B.U. L. REV. 59, 59–60 (1996).
30
See Mann, supra note 4, at 1796.
31
See Gail Heriot, An Essay On The Civil-Criminal Distinction With
Special Reference To Punitive Damages, 7 J. CONTEMP. LEGAL ISSUES 43,
54 (1996). The criminal law was one of the first major areas of the law
to be heavily codified, and at least when compared to most civil law subjects, its codes tend to be somewhat more detailed. In contrast, the civil
law remains heavily common law, particularly in the area of torts. Unlike criminal law, civil law is generally doctrinally thin and heavy in discretion by the trier of fact.
32
ALBERT P. MELONE & ALLAN KARNES, THE AMERICAN LEGAL SYSTEM:
PERSPECTIVES, POLITICS, PROCESSES AND POLICIES 197–98 (2d ed. 2007).
33
See Michael E. Weinzierl, Wisconsin’s New Court-Ordered ADR Law:
Why it is Needed and its Potential for Success, 78 MARq. L. REV. 583,
589 (1995) (stating that many large damages awards are attributed to
emotional juries who may not understand the law but award such large
damages because they are sympathetic to the plaintiff).
34
See, e.g., MARC A. FRANKLIN & ROBERT L. RABIN, TORT LAW AND ALTERNATIVES 613 (The Foundation Press, Inc. 6th ed. 1996)
35
See generally Joseph P. King, Jr., Pain and Suffering, Noneconomic
Damages, and the Goals of Tort Law, 57 SMU L. REV. 163, 165 (2004).
36
See Sam B. Edwards, Damage to Ceremonial Property in the State of
Yap: Theories of Recovery, 7 INT’L LEGAL PERSP. 119, 150 (1995) (quoting Frederick S. Levin, Note, Pain and Suffering Guidelines: A Cure for
Damages Measurement “Anomie,” 22 U. MICH. J.L. REF. 303 (1989))
(“[D]isparate awards send confused signals concerning the appropriate
levels of accident avoidance.”).
37
See WAYNE R. LAFAVE, CRIMINAL LAW 26 (Thompson West 4th ed.
2003) (1972) (emphasizing that criminal law focuses on punishing and
preventing improper conduct rather than rewarding socially desirable
conduct).
38
See Heriot, supra note 31, at 54 (noting that criminal law must be codified and publicized before it is applied to the public, as compared to
civil law which is primarily based in the common law).
39
Id. at 63 n.75 (citing Lord Camden, L.C.J., Case of Hindson and
Kersey, 8 Howell’s State Trials 57 (1816)) (“The discretion of a judge is
the law of tyrants: It is always unknown: It is different in different men:
It is casual, and depends upon constitution, temper and passions.—In the
best it is often times caprice: In the worst it is every vice, folly, and passion, to which human nature can be liable.”).
40
The Bible embraced the idea of “eye for eye, tooth for tooth, hand for
hand, foot for foot, burning for burning, wound for wound, stripe for
stripe.” Exodus 21:2425 (King James).
41
See SANFORD H. KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES
(8th ed. 2007).
42
See Heriot, supra note 31, at 66 (stating that punitive damages may be
used to punish the defendant above and beyond the level necessary to
compensate plaintiff). But see Joseph P. King, Jr., Pain and Suffering,
Noneconomic Damages, and the Goals of Tort Law, 57 SMU L. REV.
163, 181 (2004) (opining that modern tort law has moved away from the
historic tort law goal of vindication for violent conduct).
43
509 U.S. 443 (1993).
44
Id. at 469.
45
See generally Coffee, supra note 21.
46
Id. at 193.
47
See Thomas H. Koenig, Crimtorts: A Cure for Hardening of the Categories, 17 WIDENER L.J. 733 (2008).
48
See id.
24
25
45
Id. at 742.
See id. at 768 (citing Benjamin C. Zipursky, A Theory of Punitive
Damages, 84 TEX. L. REV. 105, 107 (2005)). See also Ronen Perry,
The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 TENN. L. REV. 177, 180 (2006) (“The law punishes
wrongdoers even when the wrong shows no affront to the victim’s value,
and it can hardly be said that doing so is inherently unfair in the retributive sense.”).
51
George P. Fletcher, Corrective Justice for Moderns, 106 HARV. L. REV
1658, 1667–1168 (1993) (acknowledging Aristotle as the earliest proponent of corrective justice).
52
Id. at 1668.
53
Id.
54
Id. at 1676.
55
Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams:
The Past, Present and Future of Punitive Damages, 118 YALE L.J. 392,
422 n. 125 (2008) (citing RICHARD W. WRIGHT, RIGHT, JUSTICE AND TORT
LAW 175 (David G. Owen ed., 1997)) (making the “[argument] that the
‘notion of punitive damages as retribution ‘for the discrete wrong done
to a particular individual’ accords with corrective justice’”).
56
See id. at 439 (“Punitive damages . . . are all about private
vengeance.”).
57
517 U.S. 559 (1996).
58
Philip Morris USA v. Williams, 549 U.S. 346, 351 (2007) (citing
BMW of North America v. Gore, 517 U.S. 559, 575–76 (1996)).
59
U.S. CONST. AMEND. VIII. (“Excessive bail shall not be required, not
excessive fines imposed, nor cruel and unusual punishments inflicted.”);
see also Michael P. Allen, Of Remedy, Juries, and State Regulation of
Punitive Damages: The Significance of Philip Morris v. Williams, 63
N.Y.U. ANN. SURV. AM. L. 343, 346 n.5 (2008) (citing Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989))
(“[T]he Court left open whether the Excessive Fines Clause is applicable
to the states through the Fourteenth Amendment and whether it is applicable to corporate entities at all.”).
60
512 U.S. 415 (1994).
61
See id. at 432.
62
See BMW, 517 U.S. at 562; see also State Farm Mut. Auto. Inc. v.
Campbell, 538 U.S. 408, 416 (2003) (holding that there are “substantive
constitutional limitations” on punitive damage awards and that “[t]he
Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”). For
a good discussion of the use of constitutional limitations of jury awards
see Allen, supra note 59.
63
549 U.S. 346 (2007).
64
Id. at 349.
65
Id. at 348, 354.
66
The New Jersey Supreme Court affirmed the Appellate Division’s recently vacated award of punitive damages to a woman who prevailed at
trial against her former employer in a hostile work environment claim
under the New Jersey Law Against Discrimination (“LAD”). See Tarr v.
Bob Ciasulli’s Mack Auto Mall, Inc., 943 A.2d 866 (N.J. 2008).
67
See Robert W. Drane & David J. Neal, Is the Tort/Crime Distinction
Valid?, 4 LITERATURE OF LIBERTY (1981), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1300&cha
pter=100976&layout=html&Itemid=27.
68
ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363 (Harvard University Press 1981).
69
Id.
70
See id. at 363–97; see also Youngjae Lee, The Constitutional Right
Against Excessive Punishment, 91 VA. L. REV 677, 703 (2005).
71
See NOZICK, supra note 68, at 363.
72
Id.
73
See id. at 364–365 (using the example that restitution for a millionaire
who steals $100 from an indigent person should not be a corresponding
loss of $100 but a deprivation equal to the loss of the $100 to the indigent person).
49
50
46
See id.
Id.
76
Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice
for Battered Women Who Kill?, 55 U. KAN. L. REV. 269, 289 (2007) (citing C.L. TEN, CRIME, GUILT, AND PUNISHMENT: A PHILOSOPHICAL INTRODUCTION 42 (1987)).
77
See id. at 291–292.
78
See Coffee, supra note 21, at 197; see also Leslie Yalof Garfield, A
More Principled Approach to Criminalizing Negligence: A Prescription
for the Legislature, 65 TENN. L. REV. 875, 914 (1998).
79
PROSSER, supra note 11
80
Id.
81
Id.
82
See also Richard W. Wright, Causation in Tort Law, 73 CAL. L. REV.
1735 (1985); Jane Stapleton, Choosing What We Mean By “Causation”
in the Law, 73 MO. L. REV. 433 (2008); See generally H.L.A. HART &
TONY HONORé, CAUSATION IN THE LAW (2d ed. 1985).
83
Wright, supra note 82, at 1762.
84
Id.
85
See W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS 34–
35 (West Publishing Co. 5th ed. 1984) (1941); see also CRIMES AND PUNISHMENTS 231 (Jules L. Coleman, ed., Garland Pub. 1994).
86
Keeton, supra note 85, at 34-35
87
See People v. Decina, 138 N.E.2d 799, 807 (1956).
88
Similarly, an individual who hits another while in a psychotic state
does not engage in a voluntary act.
89
RESTATEMENT (SECOND) OF TORTS § 2 cmt. c (1965).
90
See PROSSER, supra note 11, at 34 (emphasis omitted) (citations omitted).
91
See RESTATEMENT (FIRST) OF TORTS §13 cmt. d (1934). See generally
C. R. McCorkle, Annotation, Civil Liability of Insane or Other Mentally
Disordered Person for Assault or Battery, 77 A.L.R.2d 625 (1961).
92
See KEETON, supra note 85, at 34.
93
See id. at 35. The classic example of substantial certainty appears in
the case of Garrett v. Dailey, 279 P.2d 1091 (Wash. 1955), in which
seven-year-old Billy Dailey chose to pull a chair away from an elderly
Mrs. Garrett. Id. No evidence existed at the time that Billy wanted to
hurt Mrs. Garrett—in fact, he probably did not choose for her to come to
any harm at all. He just wanted to sit down. Id. However, in the case
against Billy for battery, the court found that Billy had the intent necessary to prove the intentional tort of battery as Billy knew with substantial
certainty that pulling the chair out from under Mrs. Garrett could cause
Mrs. Garrett harm. Id.
94
See RESTATEMENT (THIRD) OF TORTS- PH § 1 cmt. B (2005) (noting that
the intent required in intentional torts is an intent to bring about harm).
95
See RESTATEMENT (SECOND) OF TORTS § 21(1) (1965); see also RESTATEMENT (SECOND) OF TORTS § 21(2) (1965) (“An action which is not
done with the intention stated in Subsection (1, a) does not make the
actor liable to the other for an apprehension caused thereby although the
act involves an unreasonable risk of causing it and, therefore, would be
negligent or reckless if the risk threatened bodily harm.”).
96
KEETON, supra note 85, at 43. One of the earliest examples of assault
occurred in the case of I de S et. Ux v. W de S, Y.B. Lib. Ass. folio 99,
placitum 60 (Assizes 1348), reprinted in WILLIAM L. PROSSER & JOHN W.
WADE, CASES AND MATERIALS ON TORTS 36 (5th ed. 1971).
97
See KEETON, supra note 85, at 876.
98
See Jenson v. Employers Mut. Cas. Co., 468 N.W.2d 1, 1 (Wis. 1991)
(stating that mere words are not enough for liability under Wisconsin’s
workman’s compensation statute, Wis. Stat. Ann. §102.03 (2004)); see
also Kramer v. Ricksmeier, 139 N.W. 1091, 1091 (Iowa 1913) (ruling
that no action lay against the defendant who caused the relapse of a convalescent woman through threatening and abusive language over the
telephone unless the defendant knew that the condition of the plaintiff
was so enfeebled that she could not endure such speech).
99
411 So.2d. 1347 (Fl. Dist. Ct. App. 1982).
100
See id.; see also Waag v. Thomas Pontiac, Buick, GMC, Inc., 930
74
75
Winter 2009
F.Supp 393, 409 (D. Minn. 1996) (holding that a defendant who threatened a plaintiff by saying, “[c]ome on. Let’s take a ride and I will show
you what life is about,” did not provide sufficient evidence of assault,
even though there was substantial proof that the plaintiff was sufficiently
frightened). While threats coupled with an ability to perform the harm is
sufficient to support a finding of assault, gestures are also sufficient to
constitute assault. KEETON, supra note 85, at 43, 45. The origin of this
rule lay in nothing more than the fact that in the early days, the king’s
courts had their hands full when they intervened at the first threatening
gesture; or in other words, when the fight was about to start and taking
cognizance of all of the belligerent language which the foul mouths of
merry England could dispense was simply beyond their capacity. Mere
words are not assault, regardless of their violent nature. A defendant
who uttered threats, clenched his fist, and started toward plaintiff has
committed assault. See Dahlin v. Fraser, 288 N.W. 851, 852 ( Minn.
1939). But see Atkinson v. Bibb Mfg. Co., 178 S.E. 537, 538–39 (Ga.
Ct. App. 1935) (Guerry, J., dissenting) (commenting that “[i]t seems to
the writer that the right of a person to be secure in his freedom from unjustified and unwarranted public cursing and insult by words is as valuable a legal right as is the right to be free from physical assault or
trespass on person, property, or reputation, or the violation of a contractual right. The law itself recognizes that a private insult or a humiliation
inflicted by words alone may justify the infliction by the person so insulted or abused of an assault and battery not disproportionate to the insult offered”).
101
See RESTATEMENT (SECOND) OF TORTS § 21 cmt. c (1965).
102
See id. at § 13.
103
Id.
104
See id.; see also RESTATEMENT (SECOND) OF TORTS 1, 2, 1 Sc. Nt.
(1965) (stating that at common law, the appropriate form of action for
bodily harm directly resulting from an act done with the intention stated
in Clause (a) was trespass for battery).
105
RESTATEMENT (SECOND) OF TORTS § 13 (1965).
106
Early English law defined “battery” as “the infliction of physical injury.” See Cole v. Turner, 90 E.R. 958 (1704) (providing the earliest formulation of the modern rule: “the least touching of another in battery is
anger.” The defendant must have carried out some positive or affirmative act in order to be liable for battery. However, the actor is only responsible if the defendant intended to cause harmful or offensive contact
upon the plaintiff. In this respect, the intent element is exactly the same
as the intent for assault. Offense to the dignity involved in the unpermitted and intentional invasion of the person is the gravamen of the complaint of battery. For example, a doctor’s decision to operate on a patient
without obtaining consent first is a classic example of battery, as is the
equivalent of spitting in the patient’s face); see also PROSSER, supra note
72, at 35, 37; see also W.S. HOLDSWORTH, A HISTORY OF THE ENGLISH
LAW 422–23 (3d. ed. 1922).
107
PROSSER, supra note 11, at 41 (discussing how the similarity of the intent element seems to be why Prosser said that “assault and battery go
together like ham and eggs”).
108
See RESTATEMENT (SECOND) OF TORTS § 13 (1965).
109
See id. at § 21.
110
See, e.g., Szydlowski v. City of Philadelphia, 134 F.Supp.2d 636, 639
(E.D. Pa. 2001).
111
See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.
1967); see also Prezioso v. Thomas, 211 F.3d 1265, 1267 (4th Cir.
2000); Erwin v. Milligan, 67 S.W.2d 592 (Ark. 1934); Daluiso v. Boone,
455 P.2d 811, 812 (Cal. 1969); Emden v. Vitz, 198 P.2d 696, 699 (Cal.
Dist. Ct. App. 1948); Tate v. Canonica, 5 Cal. Rptr. 28 (Dist. Ct. App.
1960); Ford v. Hutson, 276 S.E.2d 776 (S.C. 1981).
112
RESTATEMENT (FIRST) OF TORTS § 35 (1948).
113
See PROSSER, supra note 79, at 42; see also RESTATEMENT (SECOND) OF
TORTS §§ 1, 35, 42 (requiring that plaintiff knew he was confined).
114
PROSSER, supra note 11, at 47 (stating that the typical original false
imprisonment involved battery since it was a “laying of the hands on another and depriving him of his liberty.”); see also W.S. HOLDSWORTH, A
Criminal Law Brief
HISTORY OF THE ENGLISH LAW 423 (maintaining that false imprisonment
was one of the first trespasses recognized by common law; in medieval
times, battery extended to instances in which no physical contact occurred).
115
However, false imprisonment only requires that the defendant intend
to confine, not that he intend to cause physical or emotional harm to the
plaintiff. See Dan B. Dobbs, A Restatement (Third) of Intentional Torts?,
48 ARIZ. L. REV. 1061, 1067 (2006).
116
RESTATEMENT (SECOND) OF TORTS §35 cmt. f (1965).
117
Id.
118
HARPER, supra note 25, at 287 (quoting Bird v. Jones, 115 Eng. Rep.
668 (1845)).
119
141 A.D. 362 (N.Y. 1910).
120
Id. at 363–64.
121
See KEETON, supra note 85, at 47.
122
Mann, supra note 4, at 1808–09 (quoting 3 WILLIAM BLACKSTONE,
COMMENTARIES *2, which states that “a public mischief” is punished “to
secure to the public the benefit of society, by preventing or punishing
every breach and violation of those laws”).
123
See MODEL PENAL CODE § 2.02 (1985); see also Kenneth W. Simons,
Should the Model Penal Code’s Mens Rea Provisions be Amended?, 1
OHIO ST. J. CRIM. L. 179, 187 (2003).
124
Id.
125
See generally Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993
UTAH L. REV. 635 (1993) (discussing the history of the criminal law).
126
See BLACK’S LAW DICTIONARY 712 (7th ed. 1999) (defining “specific
intent” as “[t]he intent to accomplish the precise criminal act that one is
later charged with. At common law, the specific-intent crimes were robbery, assault, larceny, burglary, forgery, false pretenses, embezzlement,
attempt, solicitation, and conspiracy”).
127
See id. (defining “general intent” as “[t]he intent to perform an act
even though the actor does not desire the consequences that result. This
is the state of mind required for the commission of certain common-law
crimes not requiring a specific intent or not imposing strict liability”).
128
See MODEL PENAL CODE § 2.02 (1985).
129
Id.
130
Id.
131
Note that there is a burden of proof issue but that is beyond the scope
of this article.
132
See LAFAVE, supra note 37, at 814–15.
133
See Alafair S. Burke, Domestic Violence as a Crime of Pattern and
Intent: An Alternative Reconceptualization, 75 GEO. WASH. L. REV. 552,
558, n. 33 (2007) (citing WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW
§ 16.1 (2d ed. 2003)).
134
LAFAVE, supra note 37, at 816.
135
Id. at 823.
136
See SANFORD H. KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES,
562 (8th ed. 2007).
137
LAFAVE, supra note 37, at 823, 825.
138
See Matthew J. Gillian, Stalking the Stalker: Developing New Laws to
Thwart Those Who Terrorize Others, 27 GA. L. REV. 285, 295 n. 69
(1992) (citing WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW
§7.16 at 691 (2d ed. 1986)) (“Generally, the crime of assault is divided
into two types: (1) attempted battery, requiring an actual attempt to cause
physical injury to the victim and not just a mere apprehension of injury;
and (2) intentional scaring, requiring only an intent to cause the victim a
reasonable apprehension of immediate bodily harm.”)
139
See, e.g., id. at 296 n. 71 (citing Commonwealth v. White, 110 Mass.
407, 409 (1872)) (holding that defendant committed assault when he
pointed unloaded gun at victim, intending to cause apprehension of battery but not to injure); People v. Johnson, 284 N.W.2d 718, 718–19
(Mich. 1979) (finding that the defendant committed assault when he
pointed gun at victim and did not fire but intended to scare, placing victim in reasonable apprehension); State v. Baker, 38 A. 653, 654 (R.I.
1897) (holding that defendant committed assault when he fired a gun to-
47
ward victim, intending to miss but intending to scare victim).
140
See State v. Kier, 194 P.3d 212 (Wash. 2008) (citing State v. Waldon,
841 P.2d 81, 83 (Wash. Ct. App. 1992)); see also State v. Wilson, 883
P.2d 320, 323 (Wash. 1994) (noting that one common law form of assault
involves “putting another in apprehension [or fear] of harm whether or
not the actor intends to inflict or is capable of inflicting that harm”).
141
See, e.g., People v. Petrella, 380 N.W.2d 11, 16 (Mich. 1985). In People v. Petrella, the victim’s boyfriend testified that the victim was the
“most frightened [he] had ever seen her.” The victim experienced nightmares, had difficulty sleeping, and sought constant protection from her
boyfriend. She also feared that the defendant and his friends—who
knew where she lived—would return; therefore, she wanted to move out
of her house. Consequently, the victim and her boyfriend moved to California, but the incident continued to affect her up until the defendant’s
trial. At the time of defendant’s trial, the victim had not visited a doctor
for counseling, but had called a rape hotline. Given these facts, there
was sufficient evidence for a jury to find beyond a reasonable doubt that
the victim suffered personal injury in the form of mental anguish.
142
Id. at 34.
143
See MODEL PENAL CODE § 2.11 (1985).
144
See id. (stating that “[a] person is guilty of assault if he: (a) attempts
to cause or purposely, knowingly or recklessly causes bodily injury to
another; or . . . (c) attempts by physical menace to put another in fear of
imminent serious bodily injury”).
145
LAFAVE, supra note 37, at 816.
146
For a good description of the similarities between assault and battery;
see People v. Thurston, 84 Cal. Rptr. 2d 221 (Ct. App. 1999) (where the
trial mistakenly instructed the jury that battery was a general intent
crime).
147
See MODEL PENAL CODE § 2.11 (1985).
148
See Dobbs, supra note 115, at 63 (stating that Section 1 of the Restatement (Third) of Torts provides for a “new general definition of intent. An ‘intent’ to produce a consequence means either the purpose to
produce that consequence or the knowledge that the consequence is substantially certain to result”).
149
See MPC PART II COMMENTARIES, VOL. 1, at 174. The commentary for
§ 211.1 and § 211.3 have consolidated “mayhem.”
150
See MODEL PENAL CODE § 2.11 (B) (1985) (stating that “battery” is
“negligently caus[ing] bodily injury to another with a deadly weapon; or
. . . Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor”).
151
See id.
152
Id.
153
See Harris v. State, 164 S.W.3d 775, 785 (Tex. Ct. App. 2005) (holding evidence was sufficient to show bodily injury because victim had
“reddish marks around [her] neck” and scratch on her collarbone). See
also North Dakota v. Saulter, 764 N.W.2d 430 (N.D. 2009) (where the
defendant lifted the victim off the ground by her neck).
154
See Scott v. United States, 954 A.2d 1037, 1046 (D.C. Cir. 2008) (saying serious bodily injury sufficient to affirm an aggravated assault conviction means the victim sustained life-threatening or disabling injuries
involving grievous stab wounds, severe burnings, or broken bones, lacerations and actual or threatened loss of consciousness); see also Reynolds
v. State, 668 S.E.2d 846, 849 (Ga. Ct. App. 2008) (ruling that evidence
was sufficient to show injury when victim testified that she was thrown
to the ground, was bruised on multiple parts of her body, experienced
soreness, and “saw stars” when defendant struck her in the head with a
plank); Arzaga v State, 86 S.W.3d 767, 780 (Tex. Ct. App. 2002) (holding State proved bodily injury by legally sufficient evidence because victim had at least one abrasion on inside of upper lip and her mouth was
swollen and bruised after being punched by the defendant); Hubert v.
State, 652 S.W.2d 585, 588 (Tex. Ct. App. 1983) (holding victim’s testimony that appellant struck his face and scratched his neck, which caused
swelling and tenderness, was sufficient to prove bodily injury); Allen v.
State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976) (holding evidence
48
was sufficient to show bodily injury where appellant kicked police officer in nose and officer testified his nose hurt, swelled, and was sore for
three or four days).
155
See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW §18.3(2), 3
SUBST. CRIM. L. § 18.3 (2d ed.).
156
See CHARLES E. TORCIA, 2 WHARTON’S CRIMINAL LAW § 206 (15th ed.
2009) (stating that false “imprisonment need not be accomplished by violence or even a touching; it may be accomplished by mere words, accompanied by a show of force or authority, to which the victim
submits”).
157
See MODEL PENAL CODE § 2.12.2; see also N.J. STAT. ANN.§2C:13-2
(West 2005).
158
See Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.
1966) (finding no false imprisonment where a store manager suspected
the plaintiffs of stealing, stopped the plaintiffs after they left the store,
and asked him to return to store for discussion of the matter).
159
RESTATEMENT (SECOND) OF TORTS § 46 (1965).
160
Id.
161
Sherry Honicutt Everett, The Law of Alienation of Affections After
McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got
Harder to Do, 85 N.C. L. REV. 1761, 1779 n.114 (2007) (quoting
CHARLES E. DAYE & MARK W. MORRIS, NORTH CAROLINA LAW OF TORTS
§5.31 (2d ed. 1999)).
162
See George P. Smith, Re-Validating the Doctrine of Anticipatory Nuisance, 29 VT. L. REV. 687, 687 n. 18 (2005) (citing WILLIAM M. LANDES
& RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 2
(1987)) (stating that the “first cause of action in tort that arose in the
twelfth century as the intentional tort, which allowed damages to be recovered through the writ of trespass vi et armis in cases of battery”).
163
Wilkinson v. Downton, 2 q.B. 57 (1897). For a detailed discussion of
IIED and its history; see John J. Kircher, The Four Faces Of Tort Law:
Liability for Emotional Harm, 90 MARq. L. REV. 789 (2007).
164
Kircher, supra note 164, at 795 (quoting Wilkinson v Downton, 2
q.B. 57 (1897)). Before intentional infliction of emotional distress its
own separate tort, United States courts allowed recovery for mental distress if it was associated with one’s intentional mistreatment of dead
bodies or burial rights. Id. In 1999, the Alabama Supreme Court, reviewing past history of this old tort, noted that “[i]t has long been the
law of Alabama that mistreatment of burial places and human remains
will support the recovery of damages for mental suffering.” Id. (quoting
Gray Brown-Service Mortuary, Inc. v. Lloyd, 729 So.2d 280 (Ala.
1999)). Prosser has also noted that recovery for the intentional infliction
of emotional distress had been allowed for “common carriers, telegraph
companies, and innkeepers.” Id. (citing W. PAGE KEETON ET AL.,
PROSSER AND KEETON ON THE LAW OF TORTS 43 (West Publishing Co. 5th
ed. 1984) (1941)). The reason why this was the case, it is opined, was
that these entities were “’the only game in town’” and were the equivalent of a “monopoly as to the services they provided to many communities.” Id. Due to this, people had no choice but to use these services,
whereby the actions of such services had to be scrutinized quite closely.
Id. Thus, allowing for such a cause of action against common carriers,
telegraph companies, and innkeepers. Id.
165
Id. Wilkinson v. Downton, a late nineteenth century case, presents one
of the earliest recognitions of IIED. The defendant in Wilkinson played a
practical joke on the victim, telling her that her husband’s leg had been
broken and that, in response, he had been taken for urgent care. Id. at
795. A particular sense of urgency was included in the defendant’s tale,
and he urged the plaintiff to quickly rush to her husband’s side. Consequently, the plaintiff was thrown into a violent shock [in] her nervous
system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing
weeks of suffering and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way
the result of previous ill-health or weakness of constitution, nor was
there any evidence of predisposition to nervous shock or any other idiosyncrasy. Id. The court allowed the plaintiff to recover for the harm she
Winter 2009
suffered.
166
See RESTATEMENT (FIRST) OF TORTS § 46 (1948). The first Restatement of Torts curtailed the seemingly broad sweep of Wilkinson by generally prohibiting individual responsibility for emotional distress or
bodily injury that resulted from conduct intended or likely to cause emotional disturbance. Id. The only exceptions were for breach of the duty
to exercise civility that common carriers, innkeepers, and telegraph companies owed to their customers, as well as recovery in cases involving
the mishandling of dead bodies. Id.
167
240 P.2d 282, 284–85 (Cal. 1952) (holding “a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made
under such circumstances as to constitute a technical assault”).
168
See Kircher, supra note 164, at 806.
169
RESTATEMENT (SECOND) OF TORTS § 46, cmt. F. IIED allows for conduct that goes beyond intention to include those acts in which the actor
deliberately disregards a high degree or probability that his or her conduct will cause emotional distress. See id. The difference between one
who is substantially certain that one will suffer from emotional distress
and one who knows of a high probability of such distress is really a matter of degree. Thus, the drafters of the Restatement allow for recovery
from one who is less than almost certain, but more than just guessing,
that this conduct will cause such distress. See id. If an individual were
to view intent in a linear fashion, with intentional awareness at the outer
left end of the line and unawareness to the right, then the degree of
awareness necessary to prove assault, battery, and false imprisonment
might move slightly to the right of the end of the line while the degree of
awareness allowed to prove IIED would pass that point slightly further
to the right.
170
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) (“Liability has
been found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”)
171
Id.
172
Id.; see also Smallzman v. Sea Breeze, Inc., 1993 WL 15904 (D. Md.
Jan. 7, 1993) (ruling that the defendant reached this threshold when he
shouted “you goddamn ‘niggers’ are not going to tell me about the rules”
at the victims).
173
Kircher, supra note 163, at 800 (citation omitted).
174
Id. at 800 n. 56. (citing RESTATEMENT (SECOND) OF TORTS SEC. 46 cmt.
d (1965)). Prof. John Kircher identified four categories of conduct that
support a finding of outrage when the defendant intentionally inflicts
emotional harm: “(1) abusing a position of power; (2) emotionally harming a plaintiff known to be especially vulnerable; (3) repeating or continuing conduct that may be tolerable when committed once but becomes
intolerable when committed numerous times; and (4) committing or
threatening violence or serious economic harm to a person or property in
which the plaintiff is known to have a special interest.” Id.
175
See, e.g., Smullen v. Interfact Polygraphs, Inc., 1991 WL 199495, at
*6 (Ohio Ct. App. 1991) (citing Pyle v. Pyle, 463 N.E.2d 98 (Ohio Ct.
App. 1983). This footnote refers to the case syllabus prepared by the
Reporter of Decisions.
176
See infra notes 187-96.
177
See supra note 154 and accompanying text.
178
Id.
179
See supra note 114.
180
See RESTATEMENT (THIRD) OF TORTS § 33 (1985).
181
Id.
182
See, e.g., TORCIA, supra note 157, § 177, decision approved, 783 So.
2d 967 (Fla. 2001) (citing Clark v. State, 746 So. 2d 1237 (Fla. Dist. Ct.
App. 1999)). Under Florida’s battery statute, “the degree of injury
caused by an intentional touching is not relevant; any intentional touching of another person against such person’s will is technically a criminal
Criminal Law Brief
battery.” Id.
183
See, e.g., Bentley v. Kentucky, 354 S.W.2d 495 (Ky. Ct. App. 1962).
184
See, e.g., Sloan v. Indiana, 42 Ind. 570 (1873).
185
See, e.g., Leichtman v. WLW Jacor Commc’ns, Inc., 634 N.E.2d 697
(Ohio Ct. App. 1994).
186
See Minch Family Ltd. P’ship v. Buffalo-Red River Watershed Dist.,
2007 WL 93084, at *3 (Minn. Ct. App. 2007) (agreeing that the plaintiff’s distress did not rise to the level required for intentional infliction of
emotional distress); see also Gaspard v. Beadle, 36 S.W.3d 229, 234
(Tex. Ct. App. 2001) (declining to find plaintiff’s behavior “extreme and
outrageous” where evidence showed that she suffered headaches, depression, and loss of sleep).
187
See National Institute for Mental Health, What are the Symptoms of
Depression?, DEPRESSION 4, available at
http://www.nimh.nih.gov/health/publications/depression/nimhdepression.pdf [hereinafer Symptoms of Depression]. As for posttraumatic
stress disorder (“PTSD”), which can occur after a person experiences
some type of trauma, the American Psychological Association states,
“Untreated posttraumatic symptoms not only have tremendous mental
health implications, but can also lead to adverse effects on physical
health. Female survivors [of abuse] may encounter physical symptoms
including headaches, gastro-intestinal problems, and sexual dysfunction.” American Psychological Association, Facts About Women and
Trauma, available at
http://www.apa.org/about/gr/issues/women/trauma.aspx. See also National Institute for Mental Health, Generalized Anxiety Disorder (GAD),
ANXIETY DISORDERS 12, available at
http://www.nimh.nih.gov/health/publications/anxiety-disorders/nimhanxiety.pdf [hereinafter Generalized Anxiety Disorder].
188
See Generalized Anxiety Disorder, supra note 188, at 21.
189
Id.
190
See supra note 114.
191
Symptoms of Depression, supra note 188, at 4.
192
Generalized Anxiety Disorder, supra note 188, at 12.
193
See Facts About Women and Trauma, supra note 188 (noting that victims of emotional abuse can develop PTSD).
194
Diane.R. Follingstad et al., The Role of Emotional Abuse in Physically
Abusive Relationships, 5 J. FAM. VIOLENCE 107, 107–119 (2005).
195
Id. at 609. After reviewing the literature on the psychological abuse
of women, Dr. Virginia A. Kelly noted, “[c]ertainly, there is strong evidence to support a claim that victims of psychological abuse are likely to
exhibit increased levels of both anxiety and depression.”
196
See infra note 213.
197
See State v. Cobbins, 21 S.W.3d 876 (Mo. Ct. App. 1994) (holding
that, although the victim entered the car voluntarily, there was sufficient
proof that she was restrained without her consent so as to substantially
interfere with her liberty because defendant began to drive in the wrong
direction, locked the doors, and told the victim, after she asked to be let
out, she would not be hurt and he only needed money).
198
2008 WL 5191394 (S.D.N.Y. Dec. 12, 2008).
199
645 P.2d 916 (Kan. Ct. App. 1982).
200
Id. at 918.
201
Id.
202
Id.
203
Rissman, 2008 WL 5191394 at *3.
204
See, e.g., Robinson v. Hewlett-Packard Corp., 228 Cal. Rptr. 591, 604
(Cal. Dist. Ct. App. 1986) (quoting Alcorn v. Anborn Eng’g Inc., 468
P.2d 216, 219 n.4 (Cal. 1970)) (stating that “the slang epithet ‘nigger’ . . .
has become particularly abusive and insulting.”).
Indeed, racial slurs perpetuated by police officers can, of themselves, be
sufficient evidence of extreme and outrageous conduct. See Mejia v.
City of New York, 119 F. Supp. 2d 232, 286 (E.D.N.Y. 2000) (reasoning
that ethnically “disparaging remarks” uttered by a police officer may
well fall within the Restatement’s definition of outrageous conduct, even
if the same remarks by a private citizen would not); see, e.g., Kelly v.
City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999) (upholding a
49
jury verdict on an IIED claim in favor of the plaintiff/arrestees where the
officers used justifiable force but also used racial epithets and disparaging names).
Such slurs by an employer can also be sufficient evidence of extreme
and outrageous conduct. See Jones v. Fluor Daniel Services Corp., 959
So.2d 1044 (Miss. 2007) (ruling in favor of the employees in an IIED
claim when the employees’ supervisor told them “you monkeys can go
to work or go to the rope.”); see also Alcorn v. Anborn Eng’g Inc., 468
P.2d 216, 216 (Cal. 1970) (holding that an employee had sufficiently alleged IIED because his supervisor shouted racial epithets and fired him).
205
468 P.2d 216 (Cal. 1970).
206
Id. at 219.
207
Id. at 218.
208
2005 WL 3113100 (N.D. Cal. Nov. 21, 2005).
209
Id. at *2.
210
See, e.g., Reeves v. Middletown Ath. Ass’n, 866 A.2d 1115, 1123 (Pa.
Super. Ct. 2004); Fulton v. United States, 198 Fed. App’x 210, 215 (3d
Cir. 2006).
211
In many states, courts require that the plaintiff must suffer some type
of physical harm. Pennsylvania law requires that a plaintiff suffer “some
type of resulting physical harm due to the defendant’s outrageous conduct” in order to satisfy the “severe emotional distress” element of this
claim. See Reeves, 866 A.2d at 1122–23 (affirming dismissal of intentional infliction of emotional distress claim because plaintiff’s complaint
only alleged “serious and permanent physical injury” without specifying
the type of injury); see also id. (citing Fewell v. Besner, 664 A.2d 577,
582 (Pa. Super. Ct. 1995) (“[P]laintiff must also show physical injury or
harm in order to sustain a cause of action for intentional infliction of
emotional distress.”); Fulton, 198 Fed. App’x at 215 (non-precedential)
(“[I]n Pennsylvania, both intentional and negligent infliction of emotional distress requires a manifestation of physical impairment resulting
from the distress.”).
212
See Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v.
New Hampshire is a Threat to First Amendment Values and Should be
Overruled, 88 MARq. L. REV. 441, 444 (2004) (stating that Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942), a case where the Court upheld a
conviction based on New Hampshire “fighting words” statute was
wrongly decided. Furthermore, Caine contends that fighting words, as
opposed to physical attacks, are protected by the First Amendment and
therefore should never be a basis for a conviction.); see Eleanor Beardsley, France Moves To Outlaw Mental Abuse In Marriages, NPR, Jan. 8,
2010, http://www.npr.org/templates/story/story.php?f=1001&ft=1&storyId=122362876 (noting that the French Parliament is considering criminalization of verbal abuse between spouses or co-habitating partners)
213
See N.Y. PENAL LAW § 240.25 (McKinney 2008). See also 18 U.S.C.
§ 245(b)(2); MODEL PENAL CODE § 250.4.
214
See ELAINE M. JOHANNES, WHEN WORDS BECOME WEAPONS: VERBAL
ABUSE (Kan. State U. 1995), available at http://www.ksre.ksu.edu/library/FAMLF2/GT346.PDF.
215
See id.
216
See Larry Alexander & Kimberly D. Kessler, Mens Rea and Inchoate
Crimes, 87 J. CRIM. L. & CRIMINOLOGY 1138 (1997); see also TORCIA,
supra note 157, at § 182 (supporting the principle of conditional intent).
217
See MODEL PENAL CODE §§ 5.01-.07 (1985).
218
See MODEL PENAL CODE §§ 5.03 (1985).
219
Victoria Kim, Mother Convicted in Internet Hoax Case Scheduled for
Sentencing Today, L.A. TIMES, May 18, 2009, available at http://latimesblogs.latimes.com/lanow/2009/05/mother-convicted-in-internet-hoaxthat-led-to-suicide-will-be-sentenced-today.html.
220
Id.
221
Id.
222
Id.
223
See Zachary R. Dowdy & Sophia Chang, Web Ad Spurs Mom’s Arrest,
NEWSDAY, May 9, 2009.
224
N.Y. PENAL LAW § 240.30 (McKinney 2008).
225
N.Y. PENAL LAW § 70.15 (McKinney 2009).
50
N.Y. PENAL LAW § 70.00 (McKinney 2007).
KADISH, supra note 41.
228
See Lee, supra note 70, at 703.
229
See id.
230
See id.
231
See Lee, supra note 70.
232
See id.
233
See generally Mark Perlman, Punishing Act and Counting Consequences, 37 ARIZ. L. REV. 227, 232 (1995) (citing Richard Parker,
Blame, Punishment, and the Role of Result, 21 AM. PHIL. q. 269 (1984)).
234
Id.
235
Id.
236
See generally Joel Feinberg, Equal Punishment for Failed Attempts:
Some Bad But Instructive Arguments Against It, 37 ARIZ. L. REV. 117
(1995).
237
See Russell Covey, Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining, 91 MARq. L. REV. 213, 229 n. 60
(2007) (citing U.S. Sent’g Comm’n, Statistical Information Packet tbl. 7
(2006), available at http://www.uscs.gov/JUDPACK/2006/1cB6.pdf)
(showing that national federal median sentence for manslaughter is
thirty-seven months); see also Celia Goldwag, The Constitutionality of
Affirmative Defenses After Patterson v. New York, 78 COLUM. L. REV.
655, 658 n. 29 (1978) (stating that the maximum sentence for
manslaughter in Maine is $1,000 or twenty years).
238
See RESTATEMENT (FIRST) OF TORTS §§ 21, 35 (1948).
239
See supra note 187; see also Nicole M. Capezza & Ximena B. Arriaga, You Can Degrade But you Can’t Hit: Differences in Perceptions of
Psychological Versus Physical Aggression, 25 J. SOC. & PERS. RELATIONSHIPS 225, 240 (2008).
240
See supra note 187.
241
Kim, supra note 220.
242
Id. This article does not propose to argue for or against the theories of
deterrence. For an interesting argument on the value of deterrence, see
Michael Tonry, Learning from the Limitations of Deterrence Research,
37 CRIME & JUST. 279 (2008).
243
See MODEL PENAL CODE § 2.11 (B) (1985).
244
David Chasen, France Mulls ‘Psychological Violence’ Ban, BBC
NEWS, Jan. 5, 2010 http://news.bbc.co.uk/2/hi/europe/8440199.stm.
245
Eleanor Beardsley, France Moves To Outlaw Mental Abuse In Marriages, NPR, Jan. 8, 2010
http://www.npr.org/templates/story/story.php?f=1001&ft=1&storyId=122362876.
246
Id.
226
227
About the Author
Professor Leslie Yalof Garfield's scholarship and
teaching bridge the worlds of theory and practice.
Prior to coming to Pace, Professor Garfield was a
legislative attorney in the Legal Division of the
Council of the City of New York. Her responsibilities
included drafting legislation, organizing public hearings and coordinating with city agencies and interest
groups on the city's legislative process. She currently
teaches and writes in the areas of Criminal Law,
Torts, Commercial Law and Constitutional Law. Professor Garfield's recent publications include articles
on the intersection between criminal and tort law, the
use of race-based preferences in higher education and
academic support for at-risk students.
Winter 2009
An Ambiguous Request for Counsel Before,
and Not After a Miranda Waiver: United States v.
Rodriguez, United States v. Fry and State v. Blackburn
By Harvey Gee1
F
ifteen years ago, in Davis v. United States,2 the
Supreme Court considered the degree of clarity
necessary for a custodial suspect to invoke the
Miranda right to counsel after a waiver.3 Davis
decided the issue of how clearly a criminal suspect must
assert his Fifth Amendment right to counsel.4 The Court
held that after a suspect knowingly and voluntarily
waives his rights, law enforcement officers may continue their questioning unless the suspect clearly requests an attorney.5 The Court reasoned that although
agents continued questioning Davis after he
stated, “I think I want a
lawyer before I say anything else,”6 the continued questioning did not
violate the suspect’s Fifth
Amendment privilege
against compulsory selfincrimination.7 Under
Davis, unless a suspect
unambiguously requests
counsel, law enforcement
officers need not stop questioning him.8 Davis marked
a departure from the Fifth Amendment’s requirement
that the government bear the entire burden of protecting
an individual’s privilege against self-incrimination. Miranda v. Arizona9 held that “[i]f the individual desires
to exercise his privilege, he has the right to do so.”10 The
Davis decision, however, allows the lower courts, as a
constitutional as well as a practical matter, broad latitude
to interpret or ignore ambiguous requests.11
Because the Court never expressly stated that its
ruling and rationale applied to pre-Miranda waiver situations as well as post-waiver requests, Davis left open
the question of whether its objective test applies in prewaiver situations.12 Since Davis, there have been several instructive cases in which an ambiguous request for
counsel was made before Miranda warnings. To begin,
in United States v. Rodriguez13 the United States Court
of Appeals for the Ninth Circuit held that Nelson v. McCarthy,14 a case decided before Davis that required police officers to clarify any ambiguous requests for
Criminal Law Brief
counsel made during an interrogation, was not abrogated
by Davis.15 Relying on Nelson’s requirement that prewaiver clarification of a suspect’s request concerning
his Miranda rights must be made, Judge Milan D.
Smith, Jr., wrote, “a duty rests with the interrogating officer to clarify any ambiguity before beginning general
interrogation.”16 The Ninth Circuit found that the interrogator should have clarified Rodriguez’s ambiguous
statement, and it reversed the district court’s decision to
admit Rodriguez’s subsequent incriminating statements.17 Following Rodriguez, the U.S. District
Court for the District of
Idaho held in United
States v. Fry18 that an ambiguous request concerning the right to counsel
requires the interviewing
officer to stop any questioning, and to clarify and
determine whether the
statement was a request
Last
for counsel.19
20
spring, in State v. Blackburn, the South Dakota
Supreme Court similarly held that in a pre-waiver situation where the accused has not yet expressly waived
his Miranda rights, the officers must clarify the waiver
before proceeding with the interview.21
This Recent Development analyzes the holdings
of Rodriguez, Fry, and Blackburn, each of which follow
the trend of a number of state and federal courts in declining to extend the Davis rule to pre-waiver situations.
These courts have largely rested their reasoning on what
Davis did not say. This Recent Development examines
the emerging judicial trends regarding ambiguous requests for counsel. It focuses on the reasoning and conclusions of the state and federal courts which have
interpreted the case since Davis. The jurisprudence that
has developed during this intervening period shows that
until the Supreme Court revisits the issue of ambiguous
request for counsel, lower courts will continue to refer
to decisions made by other state courts and federal circuits for guidance or to build on their own precedent as
51
the Ninth Circuit and the North Dakota Supreme Court
have done.
This discussion and examination is divided into
five sections. Part II reviews the basic tenets of Miranda
v. Arizona, and argues that having questioning cease if
a criminal suspect says that they want an attorney, regardless of whether it is pre or post-waiver, is faithful
to the sprit and ruling of Miranda. Part III examines
some of the holdings in different fora that have limited
the reach of Davis. Part IV advocates that courts should
adopt the “clarification approach” espoused by Justice
David Souter in his concurrence in Davis, an argument
that I believe is grounded in reality and is consistent
with notions of judicial restraint and stare decisis. Part
V discusses the lower courts’ treatment of pre-waiver
ambiguous requests for counsel in cases subsequent to
Davis. Part VI summarizes the legal reasoning in the
Rodriguez, Fry, and Blackburn decisions and discusses
how these cases support the argument that the burden to
clarify ambiguous requests for counsel before a waiver
should be shouldered by police interrogators and not by
suspects.
set of rules whose enforcement was believed to be one reasonable way—not
necessarily the only reasonable way—
of implementing the core constitutional
value at stake . . . .28
Chief Justice Earl Warren, writing for five of the
nine members of the Court, stated that “if the individual
indicates in any manner, at any time prior to or during
questioning . . . that he wants an attorney, the interrogation must cease until an attorney is present.”22 Central
to the Miranda decision was the strong interest in protecting suspects from coercion during interrogation.23
Based on the Fifth Amendment privilege against selfincrimination, Miranda created a prophylactic rule to
aid in judicial review of custodial interrogations.24 If
adequate warnings are not provided, then a confession
is considered tainted.25 Although the confession may
not be voluntary, courts will at least have greater confidence in any confession that is obtained.26
There are three key principles that should be
noted in Miranda. First, the Supreme Court in Miranda
created rights for suspects during a custodial interrogation.27 Miranda and its progeny have served as wellsettled legal protections afforded to suspects. Professor
Laurence Tribe remarks,
Second, the language contained within the Miranda decision is evidence of the Supreme Court’s
broad interpretation of a suspect’s invocation of his right
to counsel.29 In Miranda, the Supreme Court held that
“‘[i]t is settled that where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel
does not depend on a request.’ This proposition applies
with equal force in the context of providing counsel to
protect an accused’s Fifth Amendment privilege in the
face of interrogation.”30 The Court concluded that “if
the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent,
the interrogation must cease.”31 Miranda’s “in any manner” language is indicative of the Supreme Court’s
broad allowance for exercise of the right to counsel.32
Third, the Miranda Court was concerned with
the inherently coercive atmosphere of custodial interrogations. The Miranda Court suggested that the suspect
should be given the benefit of the doubt in the interpretation of ambiguous requests for counsel.33 Miranda was
an opportunity for the Supreme Court to express its dissatisfaction with the due process “totality of the circumstances” test as an exclusive means of regulating
confessions.34
Competing interests forced the Warren Court to
balance the needs of law enforcement against the suspect’s right against self-incrimination.35 While the Court
recognized the importance of effective law enforcement,
it warned against coercive police conduct.36 Throughout
its opinion, the Court repeatedly referred to the Fifth
Amendment of the United States Constitution, which
guarantees to all people the privilege to be free from
compulsory self-incrimination, and it subsequently emphasized that “[t]he right to counsel established in Miranda [is not itself] . . . protected by the Constitution
but [was established] to insure that the right against
compulsory self-incrimination was protected.”37 In emphasizing that an individual is afforded his privilege
under the Fifth Amendment of the Constitution not to
be compelled to incriminate himself, Chief Justice Earl
Warren eloquently wrote,
In Miranda . . . the Supreme Court was
consciously constructing a prophylactic
The Fifth Amendment privilege is so
fundamental to our system of constitu-
II. Miranda v. arizona
A. the landmark Decision
52
Winter 2009
tional rule and the expedient of giving
an adequate warning as to the availability of the privilege so simple, we will
not pause to inquire in individual cases
whether the defendant was aware of his
rights without a warning being given . .
. . [W]hatever the background of the
person interrogated, a warning at the
time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free
to exercise the privilege at that point in
time.38
measure of whether the reading of Miranda warnings
leads to more or less confessions.44 He explains that the
local police administering the warnings have varying attitudes in conducting interrogation and measuring their
compliance with Supreme Court doctrine.45 Nevertheless, Professor Thomas argues that even within the judicial system there is no consensus about a direct
Miranda effect on confessions, and concludes that there
are no significant statistical differences found.46
There are also the constant variables that should
be considered. Professor Thomas acknowledges that
some people are discouraged from making admissions
when they are provided a Miranda warning while others
see the warning as encouragement to speak to the poMiranda addressed the practical considerations lice.47 Correspondingly, Professor Steven Duke sugand the constitutional issues implicated by unrestricted gests there are many factors influencing confession rates
custodial interrogation. A primary motivation behind that have no relevance within the context of a pre-interMiranda was the Court’s view that a police interrogation rogation warning, including: (1) interrogation expertise
is an inherently intimidating and coercive procedure.39 of the police; (2) time available for the interrogation;
The Court observed,
and (3) the urgency of the interrogation.48
[T]he ease with which the questions put
to [the accused] may assume an inquisitorial character, the temptation to press
the witness unduly, to browbeat him if
he be timid or reluctant, to push him into
a corner, and to entrap him into fatal
contradictions . . . made the [criminal
justice] system so odious as to give rise
to a demand for its total abolition.40
Miranda implemented procedural safeguards to
protect a suspect’s Fifth Amendment privilege against
self-incrimination while being subjected to custodial interrogation.41 In practical terms, prior to any questioning, the person taken into custody or otherwise deprived
of his freedom of action in any significant way must be
warned that he has a right to remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or appointed.42 The language from
Miranda states that if a suspect “indicates in any manner
and at any stage of the process that he wished to consult
with an attorney before speaking there can be no questioning.”43
Was Miranda as significant a barrier to obtaining
confessions as law enforcement would like the public to
believe? Measuring the efficacy of Miranda has never
been an easy task. According to Professor George
Thomas, the studies have offered different results in
Criminal Law Brief
b. the Weakening and Narrowing of Miranda
A survey of Supreme Court cases from 1966 to
1994 reveals that Miranda has been weakened over
time.49 The Court continued narrowing down the scope
of Miranda guarantees by limiting the application of the
exclusionary rule to Miranda violations.50 More specifically, the Court allowed the admission of statements obtained in violation of Miranda for the purpose of
impeachment at trial 51 and has limited the application
of the exclusionary rule by creating a “public safety exception” to Miranda’s warning requirements.52 In these
cases, the Court offered a narrow reading of the Miranda protections with respect to interrogation, waiver,
and invocation.53 Further, Miranda’s scope in the context of waiver was limited in Oregon v. Bradshaw54
when the Court examined the waiver of counsel rights
subsequent to invocation and required a court to first determine whether the accused initiated further conversations with the interrogators, and if so, ascertain whether
this constituted a knowing and intelligent waiver of Miranda rights.55
These decisions have since blurred the bright–
line rule originally established in Miranda and perhaps
implicitly created a way to circumvent that rule. 56 As a
result, it has become more difficult for both police officers and lower courts to know when a confession has
been lawfully obtained.57 However, in Edwards v. Arizona58 the strength and resilience of Miranda returned.59
53
In Edwards, the Court fine-tuned the application of Mi- approaches emerged in the state and lower federal
randa and created “a second layer of prophylaxis for the courts: (1) the “threshold-of clarity” standard, (2) the
Miranda right to counsel.”60 The Edwards Court held “per se invocation” standard, and (3) the “clarification”
that when an accused invokes the right to counsel, all standard.75 Under the threshold-of-clarity rule, some juquestioning must cease until counsel arrives or until the risdictions required invocations of the right to counsel
to be direct and unambiguous before they were given
accused initiates further conversation.61
The applicability of the Edwards bright–line rule any legal effect.76 Conversely, other courts embraced a
was further clarified by a wave of four cases: Smith v. per se standard and treated any invocation as legally sufIllinois,62 Connecticut v. Barrett,63 Arizona v. Rober- ficient to bar any further police interrogation.77
In Davis, the Court decided that law enforceson,64 and Minnick v. Mississippi.65 While recognizing
the diverse handling of the issue among the various ment officers are not required to cease questioning imlower courts, the Supreme Court chose not to address mediately upon the making of an ambiguous or
the issue directly.66 The defendant in Smith, after being equivocal reference for an attorney.78 The Davis Court
informed of his counsel rights,
held that after a suspect knowreplied, “Uh yeah. I’d like to do
Under the threshold-of- ingly and voluntarily waives his
67
that.” The Court found no amMiranda rights, law enforce68
clarity
rule,
some
jurisdicment officers may continue
biguity in this request. Despite the bright–line rule set tions required invocations their questioning until and unless the suspect clearly requests
forth by Edwards, the Court had
of the right to counsel to an attorney.79 The Court reato later determine when the Edsoned that although agents conwards protections would be
be
direct
and
unambigu69
tinued to question Davis after
triggered.
ous before they were
he stated, “I think I want a
The Smith Court found
the defendant’s statement to be
lawyer before I say anything
given any legal effect.
a clear and unequivocal request
else,”80 the continued questionConversely, other courts ing did not violate the suspect’s
for counsel and consequently
found no need to address the
Fifth Amendment privilege
embraced a per se stanlevel of clarity such a request
against compulsory self-incrim70
dard and treated any in- ination.81
requires.
The Court’s lanIn Davis, a sailor in the
guage in Smith supports a narvocation
as
legally
71
United States Navy was beaten
row approach to invocation.
Nonetheless, the Smith Court
sufficient to bar any fur- to death with a pool cue, and his
concluded that “[w]here nothbody was discovered the next
ther
police
interrogation.
ing about the request for counmorning on a loading dock besel or the circumstances leading
hind the Charleston Naval Base
82
up to the request would render it ambiguous, all ques- commissary. The Naval Investigative Service (“NIS”)
tioning must cease.”72
interviewed Davis on the USS MAHAN, his assigned
military duty station.83 Prior to the interrogation, the acIII. the lImIts oF davis v. United states:
cused was advised of his right to speak with an attorney
A susPeCt hAs to be CleAr AFter
and to have an attorney present during questioning
WAIVING Miranda rIGhts
under Miranda and Article 31 of the Uniform Code of
Military Justice.84 Davis subsequently gave an oral and
In Davis, the Supreme Court considered the de- written waiver of these rights. 85 Approximately an hour
gree of clarity necessary for a custodial suspect to in- and a half into the interrogation, Davis stated, “Maybe
voke the Miranda right to counsel after a waiver.73 Until I should talk to a lawyer.”86 Discussions continued with
Davis, the Supreme Court had yet to resolve the ques- Davis in an attempt to clarify if he was asserting his
tion of what legal effect, if any, should be afforded to an right to counsel.87 Davis was asked if he was asking for
accused’s use of equivocal or ambiguous language when a lawyer or just making a comment about a lawyer.88
invoking Miranda rights during a police interrogation.74 According to the agent, Davis responded, “No, I’m not
Without a clear rule from the high Court, three diverse asking for a lawyer—[n]o, I don’t want a lawyer.”89
54
Winter 2009
After a short break, the NIS agents briefly reminded
Davis of his Article 31 and Miranda rights and continued the interrogation.90 An hour later, Davis exclaimed,
“I think I want a lawyer before I say anything else.”91
The interrogation was then terminated.92
At trial, the military judge denied Davis’ motion
to suppress the statements he made during the interrogation, and determined that the initial phraseology used
by Davis was not a request for counsel.93 The Court of
Military Appeals affirmed, holding that Davis’ ambiguous request did not serve to invoke his right to counsel
and that the NIS agents responded properly in seeking
to clarify the remark.94
In an attempt to establish a clear legal precedent,
the Court established a test in Davis that focused equally
on the factual and legal analysis of the ambiguous request for counsel. Justice Sandra Day O’Connor, joined
by Chief Justice William Rehnquist, Justices Antonin
Scalia, Anthony Kennedy, and Clarence Thomas, wrote
the majority opinion.95 The majority addressed (1)
whether an ambiguous request for counsel is sufficient
to invoke a suspect’s right to counsel under Miranda and
(2) whether, per Edwards, police officers are obligated
to ask clarifying questions after an ambiguous request
for counsel.96 The Court decisively answered these
questions by holding that, after a knowing and voluntary
waiver of the Miranda rights, law enforcement officers
may continue questioning until the suspect clearly requests an attorney and that Edwards does not limit such
questioning, by any means, to clarifying questions.97
In coming to its narrowly-focused conclusion,
the Court rationalized that the mere act of informing suspects of their Miranda rights would be sufficient to
overcome deficiencies and to protect against the coerced
relinquishment of the right against self-incrimination.98
The Court viewed the more lenient approaches taken by
other jurisdictions as unnecessarily burdensome on law
enforcement.99 In adopting a more rigid rule, it reasoned
that police officers should not be “forced to make difficult judgment calls about whether the suspect in fact
wants a lawyer. . .”100
The Court utilized an objective test to determine
if a suspect’s statement can be reasonably construed as
a request for counsel but was reluctant to apply a bright–
line rule to ease questioning based and ambiguous requests.
Clarifying questions help protect the
rights of the suspect by ensuring that he
gets an attorney if he wants one, and
Criminal Law Brief
will minimize the chance of a confession being suppressed due to subsequent
judicial second-guessing as to the meaning of the suspect’s statement regarding
counsel.101
The Court acknowledged that a requirement for
a clear assertion of the right to counsel may disadvantage some suspects if they are unable to articulate this
right “because of fear, intimidation, or lack of linguistic
skill.”102 But in this decision, the interests of law enforcement won out. The Court further mentioned that
it would be “good police practice” for officers to clarify
an ambiguous request.103 In the Court’s view, if suspects
were not required to be clear in asserting their right to
counsel, there would be an unreasonable burden placed
on officers to decide whether they can question suspects.104 Furthermore, this burden would unduly hamper
information-gathering on the part of police.105
Under the Davis mandate, a suspect must clearly
articulate his desire to have counsel present such that a
reasonable police officer in the circumstances would understand the statement to be a request for an attorney.106
Otherwise, a post-waiver reference to an attorney creates neither an obligation for questioning to cease nor
an obligation for officers to clarify the ambiguous statement.107 The officers may continue their interrogation
without fear that future statements will be suppressed.108
Davis effectively means that this police function, specifically the investigative process, outweighs the individual’s rights in these circumstances. The Davis decision
allows lower courts, as both a constitutional and a practical matter, to ignore ambiguous requests. As such, jurisdictions would be free to develop their own standard
for clarity, thereby creating even more uncertainty than
before the Davis decision. Also, lower courts would be
confronted with cases that require the second-guessing
of police judgments that a request for counsel was sufficiently ambiguous to alleviate the need for clarification. Judges would be compelled to perform objective
inquiries into the facts surrounding the interrogation.
Statements that may be perceived as somewhat equivocal can be ignored regardless of whether they are a suspect’s earnest request for counsel, and as a result, the
suspect may believe that any other requests for counsel
or further objections to questioning may be futile.
These infirmities highlight the problems inherent in Davis and Davis’ inconsistency with Supreme
Court Fifth Amendment jurisprudence. Under Davis,
an ambiguous invocation of the Miranda rights after an
55
initial valid waiver is ineffective (for example where
there is a warning and waiver, questioning, and then an
ambiguous statement).109 The question remains, however, whether the Davis rationale applies to an initial
ambiguous response (for example where there is a warning followed by an ambiguous response). As discussed
in the next section, courts have divergent opinions with
regard to this question. Some jurisdictions have determined that it does apply, whereas other jurisdictions
have concluded that it does not.
IV. JustICe souter AND the ClArIFICAtIoN APProACh: Just Ask - WAs It A request or Not?
The invocation of Miranda rights should not be so
difficult. Miranda rights are in place to prevent custodial interrogations that are inherently coercive. Unfortunately, as illustrated by some lower courts’ decisions
after Davis, these protections are sometimes removed.110
Accordingly, because the Fifth Amendment prohibits
compelled self-incrimination, all responses to questioning not accompanied by a valid waiver are considered
compelled.111
Although the Davis Court did not mention when
a suspect must make a clear request for counsel, I have
previously argued that because the facts in Davis involved a post-waiver invocation, the clarification rule
does not apply before a suspect waives his right to counsel.112 Professor Marcy Strauss recently argued that
Davis should be seen as a limited rule, applicable only
to post-waiver invocations.113 Professor Strauss also
suggests that court decisions after Davis have made it
extremely difficult for suspects who wish to assert their
rights to do so, as many judges classify even seemingly
clear invocations as ambiguous invocations.114 Professor Strauss further urges that courts should require that
any ambiguous or equivocal request be clarified prior to
continued questioning of a suspect.115 Though in my
earlier piece I did not advocate for the adoption of a clarification approach to address this issue in future cases,
the court decisions since have made clear that a clarification approach should be applied to address ambiguous
requests for counsel in pre-wavier situations. Just like
Professor Strauss, I would also argue that future ambiguous request cases should follow this reasoning and
place the burden on interrogators, not suspects, to show
that that the suspect waived his Miranda rights. A clarification approach would be consistent with the precedent set by Miranda and Edwards, guaranteeing the
56
right to counsel and protecting suspects’ constitutional
rights. This was the majority rule before Davis. This
approach allows the police to continue questioning an
arrestee whose invocation was ambiguous, but only to
determine the suspect’s intent to exercise his right to
counsel.
As previously mentioned in the introduction, a
majority of federal courts have utilized the clarification
standard, which allows police officers to continue questioning an arrestee whose invocation was ambiguous or
equivocal solely for the purpose of determining the suspect’s intent to exercise his right to counsel. But under
Davis, depending on the interpretation of the lower
court, the burden is on defendants to clearly articulate
their request for counsel after they have already initially
declined such assistance. A caveat is in order.
The obligation for defendants to clearly ask for
an attorney before an initial waiver allows the speaker’s
expressed intent to be ignored.116 From my perspective,
and based on my criminal defense experience, I suggest
that the better approach is to require the police officer
to seek clarification from the suspect if he is unsure
whether the defendant is requesting an attorney. Just
ask. While Miranda requires all questioning to cease, a
question to clarify should be allowed and should not be
interpreted as an effort to elicit an incriminating statement. Under a clarification approach aimed towards efficient police practice, the police would follow
established guidelines during interrogations: when confronted with an ambiguous request, the police must stop
and clarify. At the same time, the individual’s constitutional rights would be protected as that individual can
choose to either seek counsel or continue with questioning. Notably, this clarification approach was advocated by Justice Souter in his Davis concurrence.
Justice Souter, joined by Justices Harry Blackmun, John Paul Stevens, and Ruth Bader Ginsburg, concurred with the majority.117 Although Justice Souter
believed the majority’s decision was correct, the standard adopted by the majority was not. Justice Souter
agreed that Davis’ statements should not have been excluded from trial because he had not clearly requested
an attorney.118 Justice Souter, however, disagreed with
the majority’s standard with regard to a police officer’s
obligation to clarify an ambiguous request for counsel.119
In particular, he concluded that interrogators have the
legal obligation to clarify a custodial subject’s ambiguous statement if the statement could be interpreted as a
desire to consult with an attorney.120
Justice Souter made three crucial points. First,
Winter 2009
he believed that the clarification standard adopted by the
majority of the lower courts was a better alternative.121
[E]ven if Davis renders an ambiguous
statement insufficient to invoke a susRather than allowing the police to continue interrogating
pect’s rights, that statement should ina suspect after an equivocal request for counsel, Justice
fluence whether there occurred a valid
Souter would require police officers, following an amwaiver…Even if not deemed an invocabiguous statement, to ascertain whether the suspect ac122
This standard would not
tually wants an attorney.
tion per se, the statement can and should
be considered in deciding the validity of
only ensure that a suspect’s choice of whether to have
any waiver. Pre-waiver, ignoring such a
counsel during an interrogation will be “scrupulously
statement (or making a derogatory statehonored,” but would also provide a workable solution
ment about how not talking would hurt
to the misunderstandings that often arise between sus123
the defendant’s cause) should render any
pect and interrogator. Justice Souter made the robust
subsequent waiver invalid. At a miniclaim that “the Miranda safeguards exist ‘to assure that
mum, the officers need to clarify the susthe individual’s right to choose between speech and sipect’s desire in order to satisfy the
lence remains unfettered throughout the interrogation
waiver requirements.131
process,’ and that the justification for Miranda rules, intended to operate in the real world, ‘must be consistent
As an alternative, Professor
with . . . practical realities.’”124
Second, Justice Souter
[T]he police may con- Strauss argues that the courts
suggested that the majority disreshould adopt a strict “stop-andtinue
questioning
ungarded judicial restraint. Accordclarify” method, which requires
ing to Justice Souter, the
officers to follow specific rules in
less the suspect
majority’s holding was not manasking questions from a prepared
unambiguously
invokes
dated by any of the Court’s prior
script about whether the suspect
decisions, and for the majority to his rights, regardless of
wants counsel or not. 132 The officer would not be allowed to add
assert otherwise was an erroneous
125
whether
law
enforceFiany editorial comments onto
application of precedent.
nally, Justice Souter pointed out ment officials have enthese rigid rules.133 As applied to
the cases in this Recent Developthat the majority did not define
ment, both Justice Souter’s clariwhen an assertion is clear and deavored to clarify any
126
He argued that
fication approach and Strauss’
when it is not.
ambiguity.
“every approach, including the
approach would ensure that a
majority’s, will involve some ‘difficult judgment calls,’” suspect’s request for counsel would be honored, and as
and police judgment calls, according to the majority, a result, litigation and challenges to the statements
would actually erode the bright–line test of Edwards.127 would be reduced or eliminated.
In Souter’s view, officers have a non-assignable
After Davis, some courts utilized the Davis ralegal obligation to ask necessary questions in order to tionale and applied the so-called clarification approach
clarify any ambiguous statements made by a suspect. 128 in a pre-waiver situation. They have held that upon any
In addition, Justice Souter noted that a large percentage clear or equivocal request for counsel, the police must
of criminal suspects lack a strong command of the Eng- cease all questioning and seek clarification of the suslish language, and many others are either so intimidated pect’s request. Accordingly, the police may continue
by the interrogation process or so overwhelmed by the questioning unless the suspect unambiguously invokes
uncertainty of their situation that they are unable to his rights, regardless of whether law enforcement offispeak assertively.129 With this in mind, Justice Souter cials have endeavored to clarify any ambiguity.134 As
insisted that, because of these realities, the Court has tra- discussed below, the courts that follow the clarification
ditionally required a broad interpretation of requests for rule will probably develop individualized standards and
counsel.130
associated definitions of “ambiguity,” which will deIn her article, The Sounds of Silence: Reconsid- pend upon the facts and circumstances of each case that
ering the Invocation of the Right to Remain Silent Under arises during the development of these standards.
Miranda, Professor Strauss asserts that,
Criminal Law Brief
57
V. From Leyva to roBinson: Pre-WAIVer
AmbIGous requests For CouNsel
JurIsPruDeNCe AFter davis
A. davis is Applicable even When a suspect
makes an Ambiguous request for Counsel Before
Waiving Miranda rights
Several courts have applied the Davis doctrine
regardless of its timing. The Massachusetts Court of
Appeals acknowledged that the Davis rationale is limited to post-waiver ambiguity, not an ambiguous request
for counsel in the context of the initial advisement of
rights. The court found no difference, however, between
applying the Davis rule to any waiver situation, either
before Miranda warnings or after, stating that “[c]ourts
have held that unless a suspect ‘clearly and unambiguously’ invokes his right to remain silent, either before
or after a waiver of that right, the police are not required
to cease questioning.”135
The Sixth Circuit Court of Appeals also applied
Davis to a pre-waiver situation in Abela v. Martin,136 a
case involving a stabbing death at a party.137 The suspect
was also injured and taken to a hospital emergency room
for treatment.138 At the hospital, the police officer was
interrogating Abela about the events when Abela stated,
“[m]aybe I should talk to an attorney by the name of
William Evans,” showing the officer Mr. Evans’ business card.139 The officer then left the room, presumably
to contact Abela’s attorney.140 The officer came back to
the room and proceeded to Mirandize Abela, but never
made any mention of Mr. Evans.141 Nevertheless, Abela
signed the waiver form given to him and made a statement.142 After being transported to the police station,
Abela made another statement to the police.143 The
Sixth Circuit distinguished the facts of Abela from those
of Davis and found Abela’s request for his attorney to
be unequivocal in nature, stating that “[a]fter Abela requested counsel, the police were required to cease questioning him until he had a lawyer present.”144
In In re Christopher K,145 the Illinois Supreme
Court applied Davis’ objective test to a pre-waiver setting and addressed whether the suspect’s articulation of
his request for counsel was sufficiently clear for a reasonable officer in the circumstances to have understood
the statement as such a request.146 The court concluded
that respondent’s statement was not sufficiently clear to
invoke his right to counsel and based its reasoning on
the following:
58
The fact waiver has not yet occurred can
simply be subsumed into the objective
test. That is, a trial court may consider
the proximity between the Miranda
warnings and the purported invocation of
the right to counsel in determining how a
reasonable officer in the circumstances
would have understood the suspect’s
statement.147
Notably, the Texas Supreme Court issued a rare
suppression ruling in a juvenile case. The court in In
the Matter of H.V. 148 found that a juvenile who told a
magistrate that he “wanted his mother to ask for an attorney” invoked his right to counsel before police interrogated him about a murder.149
H.V. was a
sixteen-year-old Bosnian native who was seen leaving
his high school with the victim two days after buying a
gun.150 A police detective met with H.V. at his high
school the day after the victim’s body was discovered
at a construction site with gunshot wounds to his head.151
H.V. voluntarily accompanied the detective to a juvenile
processing center where the magistrate asked H.V.
whether he wanted to waive his rights and speak to the
police.152 When H.V. said he wanted to speak to his
mother, he was informed that he could not speak to his
mother to ask for an attorney.153 Despite H.V.’s reminder
to the magistrate that he was sixteen years old, the magistrate told him that H.V. was the only person who can
request an attorney.154 H.V. later provided a written
statement in which he claimed that the victim accidentally shot himself with H.V.’s gun. 155
The majority opinion referred to Davis and provided examples of what constituted a valid request for
counsel.156 The court recognized that, “[t]here appear
to be no cases answering whether a juvenile’s age is
among the ‘variety of other reasons’ courts cannot consider when deciding whether an accused has requested
counsel.”157 The court later determined that, “[t]his is
not a case in which H.V. simply wanted to see his
mother; the only reason he said he wanted her was for
the purpose of getting him an attorney.”158
Seemingly, not only are these courts reading
Davis as saying that it applies in pre-waiver situations,
but also that any request for counsel, either before or
after waiver, must be made clear by the suspect. The
burden of clarification rests squarely on the shoulders
of the suspect.
Winter 2009
b.
Potential Abuses of davis and Police
Interrogation tactics
Davis allows a great deal of leeway for police
interrogators because it says nothing about the manner
in which interrogators are permitted to respond to an
ambiguous request for an attorney. As a result, interrogators may feel latitude in employing tactics to deflect
suspects from invoking their right to an attorney.159
In my previous work as a public defender, I listened to the many narratives from my clients about how
the police would not provide Miranda rights when they
should have. In these situations, officers frequently
claimed that they were asking only routine investigation
questions of my clients who were or were not supposedly under arrest. Sometimes that was true. Other
times, it appeared to be a pre-text to elicit incriminating
statements. Regardless of the motive of the police, this
gives a great deal of leeway in their information gathering. Professor Paul Butler, a former federal prosecutor,
observes,
The police are very good at getting suspects to talk, even after they give suspects Miranda warnings. . . Officers get
people to talk by methods that include
lying about the evidence in the case,
lying about witnesses, and lying about
the likelihood of prosecution.160
Because the police are trained in interrogation
tactics, they are significantly advantaged over even the
most cunning of criminal suspects. According to Professor Charles Weisselberg, in California police recruits
in basic academy training are instructed that after suspects receive and acknowledge that they understand
their rights, suspects must either waive or invoke that
right; continuing training materials are provided to police officers as well.161 The police can use various tactics when suspects consider a request for counsel
including: (1) leading suspects to believe that, by invoking their right to have an attorney present, it may make
it difficult to tell their story to the police; and (2) giving
the impression that they would not be able to take advantage of the benefits of cooperating with the police.162
Essentially, even when officers work within the boundaries created by Miranda and Davis, they can still employ whatever trickery or psychological coercion that
the Miranda Court considered.
Ten years after Davis, in Missouri v. Seibert,163
Criminal Law Brief
a particularly egregious abuse case came before the
Court. Seibert was convicted in state court of seconddegree murder.164 Seibert feared facing charges of neglect when her son, afflicted with cerebral palsy, died in
his sleep.165 Instead, she helped arrange for her son’s
body to be incinerated in the family’s mobile home.166
After her arrest, Seibert was not given Miranda warnings and was questioned for thirty to forty minutes until
a confession was obtained.167 At one point the officer
squeezed Seibert’s arm.168 After a twenty minute break,
the officer returned, provided her with Miranda warnings, and obtained a signed waiver from her.169 The interrogation resumed and, when confronted with her
pre-warning confession, Seibert repeated the information.170 At trial, the interrogating officer revealed that
he employed questioning techniques that required him
to withhold Miranda warnings, to question Seibert, to
then give Miranda warnings, and to repeat his question
until he received the answer previously given.171
At issue was the police practice of providing no
warnings of the right to silence and counsel until a confession is obtained through interrogation.172 The Court
was to determine the admissibility of the repeated statement.173 Justice Souter wrote for the Court, joined by
Justices Stevens, Ginsburg, and Breyer, holding that Miranda warnings given mid-interrogation where an unwarned confession was produced were ineffective and
therefore the confession was inadmissible at trial.174 According to majority opinion, the repeated statement was
inadmissible “[b]ecause this midstream recitation of
warnings after interrogation and unwarned confession
could not effectively comply with Miranda’s constitutional requirement . . . .”175
The objective of the question–first tactic utilized
by the police was to render Miranda warnings ineffective by waiting for an opportune time to give the warnings after the suspect confesses.176 The majority
recognized that “the question-first tactic effectively
threatens to thwart Miranda’s purpose of reducing the
risk that a coerced confession would be admitted.”177
Further, “[t]he unwarned interrogation was conducted
in the station house, and the questioning was systematic,
exhaustive and managed with psychological skill.
When the police were finished there was little, if anything, . . . left unsaid.”178
Justice Steven Breyer’s concurrence was equally
critical in his criticisms of the police interrogation techniques employed in Seibert’s interrogation.
Reference to the prewarning statement
59
was an implicit suggestion that the mere
repetition of the earlier statement was not
independently incriminating. The implicitly suggestion was false . . . The technique simply creates too high a risk that
postwarning statements will be obtained
when a suspect was deprived of “knowledge essential to his ability to understand
the nature of his rights and the consequences of abandoning them.”179
officer to clarify the statement (a pre-waiver situation).
If the same requests were made by a suspect after they
were Mirandized, then under Davis, a court may find
that there is no duty on behalf of police officers to clarify
such a statement and any incriminating statement would
be potentially admissible. Such interrogation tactics
will not invalidate the suspect’s waiver of her right to
an attorney. Unlike Seibert, most cases lack strong evidence of the interrogator’s wrongful intent.
The notion that the police should not be allowed
to employ interrogation tactics that will undermine a
Subsequently, as a remedial measure, Justice Breyer suspect’s understanding of the warnings was reiterated
proposed a Fourth Amendment type rule that “[c]ourts by the Florida Court of Appeals in Dooley v. State.182
Dooley, who was accused of sexshould exclude the ‘fruits’ of the
ual battery and lewd acts against
initial unwarned questioning unThe
notion
that
the
poa minor said, “Um, I don’t wish to
less the failure to warn was in
180
waive my rights,” after he was
good faith.”
lice should not be alAcademics were also critgiven his Miranda warning.183
lowed
to
employ
Dooley later said during the interical of the conduct of the interrorogation, “Um, I’m going to talk
gation tactics in Seibert, as
interrogation tactics
you,” and a confession reProfessor Yale Kamisar observed,
that will undermine a to
sulted.184 Later citing Miranda,
[I]f the police really besuspect’s understand- the Florida court held that Dooley’s statement was not a waiver,
lieved (as they expect the
rest of us to believe) that ing of the warnings was and the interrogation should have
a fresh set of Miranda reiterated by the Florida ceased at that point.”185 The court
also found the interrogator’s indiwarnings, plus an addiCourt of Appeals in
cation that Dooley could speak to
tional warning explaining
the officer without the risk of his
the likely inadmissibility
Dooley v. State.
statements being used in court
of the earlier unwarned
was improper, stating that “The
statement, would completely “cure” everything and restore the
police may not use misinformation about Miranda rights
to nudge a hesitant suspect into initially waiving those
suspect to exactly the same position he
rights and speaking with the police.”186
would have been in had he never made
the earlier unwarned statement, what do
C. davis is Not Applicable: A Clear request is
the police gain by deliberately withholdNecessary only after Waiving Miranda rights
ing the warnings in the first place and
giving the Miranda warnings and the
Several lower courts, unwilling to confront thsupplementary warning later? Wouldn’t
it be a good deal simpler just to give the
Davis majority opinion, have held that Davis is limited
appropriate warnings in the first place?181
to post-waiver situations. In State v. Leyva,187 the Utah
Supreme Court held that Davis did not intend to extend
When Davis and Seibert are considered together to pre-waiver situations.188 In Leyva, the Utah Highway
a relationship may be drawn between ambiguous re- Patrol noticed Leyva’s car leaning to one side on the
quests for counsel and improper interrogation tactics. freeway when a State Trooper noticed that the car’s liTake a hypothetical case using the same facts as in Seib- cense plate had been issued to another car.189 A high
ert with only slight changes: the suspect remarked, speed pursuit began when the trooper attempted to pull
“‘Maybe I should talk to a lawyer” before they were Mi- Leyva over.190 The trooper read Leyva his Miranda
randized. A court may rely on the rationale offered in rights, and asked Leyva if he wanted to talk. Leyva reDavis and find that there would be no obligation by the sponded, “I don’t know.”191 Fifteen minutes later, while
60
Winter 2009
being transported to jail, Leyva asked the trooper about
the charge against him.192 The trooper told Leyva that
he was being charged with “Evading, improper registration, no driver’s license, no insurance, and possession
of cocaine.”193 Leyva said, “‘Hey, man, I’ll admit to
everything else, but the cocaine isn’t mine.’ [The
trooper] asked, ‘So you admit you saw my lights and
were trying to run from me?’ Leyva replied, ‘Yeah, I
was, but the cocaine isn’t mine.’”194
The Utah Supreme Court rejected the state’s broad
reading of Davis which purportedly supported their argument that officers are not required to limit their inquiry to clarifying the intent of the suspect, but could
continue questioning.195 The majority reasoned that
“[t]he Court in Davis made clear that its holding applied
only to a suspect’s attempt to reinvoke his Miranda
rights ‘after a knowing and voluntary waiver’ . . . .
Plainly the court in Davis did not intend its holding to
extend to prewaiver scenarios . . . .”196
The Leyva analytical framework was adopted by
the South Dakota Supreme Court in State v. Tuttle,197
which held that Davis does not apply to pre-waiver situations, and where the accused has not yet validly
waived Miranda rights, the officers must clarify the
waiver before.198 In that case, officers arrived to the
scene of a verbal argument between Tuttle and another
gentleman.199 Officers then discovered another man
who was stabbed eleven times.200 Under interrogation,
Tuttle admitted to stabbing the victim three times.201
After a lengthy colloquy, Tuttle stated he did not want
to waive his rights but still wanted to talk with the interrogator.202 The court found that Tuttle’s responses
during the interview indicated he knew that any admission would be incriminating and upheld the lower
court’s finding that he knowingly, intelligently, and voluntarily waived his Miranda rights.203 The court also
noted that the detective sufficiently clarified Tuttle’s intent and that based on the totality of the circumstances
Tuttle waived his Miranda rights.204
The viewpoint that the Davis rationale should not
be extended to pre-wavier situations gained traction at
the intermediate court of appeals level. The Maryland
Court of Appeals relied on Leyva, and declined to extend
Davis in Freeman v. State.205 Freeman was convicted
of shooting to death her boyfriend.206 Freeman walked
into a police station and announced, “I just shot someone.”207 Freeman responded to the Sergeant’s question
about which hand she used to shoot the victim.208 The
Sergeant then advised Freeman of her Miranda rights.209
She indicated that she understood her rights, but said
Criminal Law Brief
nothing about waiving them.210
Later Freeman waived her rights by initialing each
question on the waiver form.211 In response to questioning, Freeman explained where and when she purchased
the gun, that the gun is normally kept underneath the
front seat of her car, and that she did not have a permit
for it even thought she knew it was against the law.212
The court stated,
While there may well be sound reason to
apply the logic of Davis to the matter of an
ambiguous invocation of the right to silence that follows a valid waiver of Miranda rights, that logic does not extend to
an ambiguous invocation that occurs prior
to the initial waiver of rights.213
The court sua sponte presented the issue of
whether the rationale of Davis applies to an ambiguous
invocation made prior to wavier of rights, but it was persuaded by the Utah Supreme Court’s reasoning in Leyva
and declined to apply Davis to a prewaiver context
analysis.214
The next year, the Alabama Criminal Court of Appeals was persuaded by Freeman v. State when it addressed the issue of whether pre-waiver Davis applied
and essentially adopted the Freeman analysis in State v.
Collins.215 There, Collins gave a videotaped statement
to the Montgomery Police Department Officer, in which
she admitted that she was involved in a fatal hit-and-run
accident.216 The Court determined that she was not paying attention to the road, and was looking for something
in her purse on the backseat.217 Collins said that she hit
something that caused her car to swerve, noticed that
her windshield was broken, and saw a girl lying on the
road.218 Collins further said she did not stop but returned
to work and did not contact the police despite seeing the
news coverage about the girl being killed.219 Collins
gave the statement without counsel present and claimed
that (1) she did not understand the right to counsel and
therefore she could not have waived it and (2) neither
officer present answered her question about how long it
would take to get an attorney.220
In finding that there was no knowing or voluntary
waiver of her Miranda rights, the majority wrote,
“Davis does not apply to this case. Collins’s questions
were directed to the delay involved in obtaining a
lawyer, and she asked them before she signed the
waiver-of-rights form.”221 The court concluded that the
ambiguity of Collins’ questions required the interrogat61
ing officer to ask follow-up questions to clarify the ambiguity.222
In Robinson v. Arkansas,223 after a jury trial,
Robinson was convicted of first-degree murder.224
Robinson ran from the crime scene, was caught
after a pursuit, and was taken into custody.225 After
Robinson was read his Miranda rights from a preprinted card, the Sheriff asked him, “why are you
running from the police?” Robinson answered, “I
don’t want to say anything right now.”226 The
questioning continued, and Robinson made several incriminating statements.227
In the court’s opinion, written by Judge Jim
Gunter, Robinson’s response was construed as an invocation of his right to remain silent under Miranda, and
the court determined that “[u]nder these circumstances
. . . the officer should have ceased his interrogation after
Robinson’s statement, ‘I don’t want to say anything
right now.’”228
While the court does not explicitly mention
Davis in its opinion, an analysis of Davis as applied to
Robinson is provided in Judge Annabelle Clinton
Imber’s concurring opinion, and in the dissent by Judge
Tom Glaze. Judge Imber referred to the Arkansas Rules
of Criminal Procedure229 and the Davis decision, and recalled that Davis allows a suspect to invoke his right to
counsel in any manner if he does so before waiving his
Miranda rights.230 The Imber concurrence averred that
“Robinson never waived his rights…his statement ‘I
don’t want to say anything right now’ was not required
by Davis to be unequivocal. Rather, it was sufficient
because it was made in ‘any manner.’”231
However, Judge Tom Glaze disagreed with this
interpretation of Davis and explained in his dissent that
the invocation of a right to counsel need not be equivocal or tentative during questioning.232 With this in mind,
he concluded that “Robinson’s attempted invocation of
his right to remain silent was equivocal because he
merely said that he did not want to say anything ‘right
now.’ Robinson’s response could reasonably be interpreted to mean that he might (or would) talk later, and
he did.”233
V.
62
AnAlysis of United StateS v. RodRigUez,
United StateS v. FRy, And State v.
BlackBURn: The RighT ideA
This section closely examines Rodriguez, Fry,
and Blackburn and discusses their similar rationales.
These three recent cases represent the view that in a prewaiver situation where the accused has not waived their
Miranda rights, the officers must clarify the waiver before proceeding with the interview (the burden is placed
on the officer, not on the suspect). These courts required
that all questioning must stop, even when the most ambiguous references to counsel is made.
A.
United States v. Rodriguez
As briefly discussed in my introduction, in Rodriguez, the Ninth Circuit Court of
Appeals held that its precedent before Davis, which required police officers to clarify any ambiguous requests
for counsel at any time during an interrogation, survives
Davis. The facts are straightforward. Rodriguez was
driving erratically and was pulled over in a National
Recreation Area in Las Vegas based on suspicion of intoxication.234 Before roadside sobriety tests could be
performed, the Ranger learned that Rodriguez was a registered felon and saw a pistol handle protruding from an
open bag in the bed of the Rodriguez’s truck.235 Rodriquez informed the Ranger that there was another
firearm under the driver’s seat.236 After providing Rodriguez with a Miranda warning, the Ranger asked him
if he wanted to speak.237 Rodriguez responded, “I’m
good for tonight.” 238 At trial, the Ranger testified that
he understood this as being Rodriguez’s willingness to
speak to him later, but not immediately.239 Rodriguez
responded to the Ranger’s questions and admitted that
the bag, the gun, and the silencer belonged to him.240
The court noted that in the context of a Miranda
waiver, the phrase “I’m good” may be interpreted in a
myriad of ways and reasoned that the statement could
have been an ambiguous invocation of the right to silence.241 As such, the court then considered the need for
the Ranger to have clarified Rodriguez’s response.242
The court referred to the narrow holding of Davis, which
involved a post-waiver situation, and acknowledged the
decision’s limitations, which held that “‘after a knowing
and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney.’”243 The
court noted that “[t]he text of the [Davis] opinion is . . .
narrowly drawn: it asks whether ‘further questioning’ is
permitted upon an equivocal or ambiguous invocation
of the right to counsel, or, rather, whether questioning
must ‘cease.’”244 The court further proclaimed that “to
Winter 2009
question.256 The officers never clarified Fry’s statement
regarding a lawyer.257 Fry was further informed about
potential charges stemming from the evidence of his alleged criminal activity and how they would stand in the
federal system, and was given further encouragement to
cooperate with police.258 Only then was Fry given his
Miranda rights.259
According to Judge Quackenbush, writing for
the court, the facts support a finding that Fry wanted a
lawyer and that the interrogator should have clarified
any ambiguity that may have existed.260 The court noted
that Fry’s statement regarding the need for an attorney
was made “prior to the reading of his Miranda rights,
prior to the subsequent waiver, and prior to the interviewing agents’ ‘softening up’ and questioning.”261 The
decision was especially critical of the interrogator,
Agent Smith, and devoted a lengthy passage to his failure to address Fry’s request for a lawyer and to Smith’s
B. United States v. Fry
persistent questioning in an effort to elicit incriminating
The District Court for the
statements.262 The court wrote,
“[t]he question was clear enough
District of Idaho in United States
[A]
reasonable
officer
in
that a reasonable officer in light
v. Fry relied on Rodriguez for analytical support and joined other
of the circumstances would have
light of the circumcourts in restricting Davis’ holdunderstood that the suspect
stances would have un- might be invoking the right to
ing to facts arising in a postwaiver context.248 The court
counsel. As such, Agent Smith
derstood that the
suppressed Fry’s statements behad a duty to clarify the ambigususpect might be invok- ity before proceeding with an incause his request for counsel was
intentionally ignored; Fry did not
ing the right to counsel. terview and interrogation.”263
The prophylactic rules
have to make a specific clear re249
As
such,
Agent
Smith
quest in a pre-waiver context.
established in Miranda and EdIn this case, Fry was drivhad a duty to clarify the wards, which were intended to
ing his pickup with two passenpreclude the type of questioning
ambiguity
before
progers and was pulled over by
tactics employed against Fry,
police officers during a traffic
ceeding with an inter- were especially helpful to the
250
stop. The officers found a pipe
court. It concluded that the Miview
and
interrogation.
and syringe and placed Fry under
randa and Edwards rules were
arrest for unlawful use of drug
violated, and as such, Fry’s state251
The officers
paraphernalia.
ments should be suppressed.264
then initiated conversation with Fry without providing The court then proceeded to distinguish Edwards’ facts
any Miranda warnings.252 They informed Fry that he from Fry’s circumstances:
was the subject of a methamphetamine distribution investigation.253 Fry asked, depending on the differing acThough the court acknowledges that the
counts, either “Do I get to have a lawyer to sit in?” or
Edwards facts involved a “clearly asserted” invocation of the right to coun“Do I need an attorney?”254 One of the interrogators atsel, the court finds that the unclarified,
tempted to “soften-up” Fry by telling him of the potenpre-waiver, ambiguous reference to
tial charges he faced and of the advantages of
counsel is most analogous to and must
cooperating with the investigation.255 The dialogue continued despite the fact that Fry was neither provided any
be treated and analyzed as though it
were a clear request for counsel (thus
Miranda warnings nor given a response to his “lawyer”
the extent Nelson requires pre-waiver clarification of a
suspect’s wishes… it has not been superseded by
Davis… Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officers to clarify any ambiguity before beginning general
interrogation.”245
In concluding its decision, the court held that the
burden rests on the government and not on the suspect
to clarify any ambiguous statement, and as such, because the interrogator did not clarify Rodriguez’s
wishes, the district court erred in admitting his subsequent incriminating statement into evidence.246 The
court also noted, “if it is not unreasonable to ask a police
officer to administer the warning, it is also not unreasonable to ask him to get an unequivocal waiver before
commencing general interrogation.”247
Criminal Law Brief
63
triggering the protection of Edwards)
until and unless the suspect’s intent is
clarified otherwise. This is consistent
with the Supreme Court’s “settled approach” that a defendant’s request for
counsel is to be given a broad rather than
a narrow interpretation.265
Perhaps echoing the Supreme Court in Seibert,
the Fry court concluded that Agent Smith’s failure to
clarify Fry’s statement and his “subsequent coercive dialogue and interrogation of the Defendant violated the
doctrines established in Miranda and Edwards,” rendering Fry’s subsequent confession tainted. 266
C.
State v. Blackburn
know.276
The interrogating officer did not clarify Blackburn’s ambiguous and equivocal answers, and continued the interrogation.277 Blackburn then made the following
admissions: (1) he was drunk and high on cocaine when
he was at the victim’s house when an argument ensued
and escalated into a physical altercation; (2) he punched
and stabbed the victim several times with a knife; and
(3) that he struck the victim’s head with a rock.278 Only
after these statements were made did the interrogating
officer attempt to clarify Blackburn’s earlier statement
about wanting a lawyer.279
On appeal, the State argued that (1) Blackburn’s
statement was not a request equivocal or otherwise, for
an attorney or to stop the interrogation and (2) even if
Blackburn’s request was considered an equivocal request for an attorney, his request was made after waiving
his Miranda rights, and the officer could therefore continue questioning absent a clear request.280
Justice Judith Meierhenry wrote the court’s opinion and noted that several courts, including the Supreme
Court in Rodriguez, have held that police officers must
clarify an ambiguous waiver before proceeding with the
interview.281 The court explained that the trial court
properly applied Davis’ objective “reasonable person
standard” and determined that Blackburn’s statement
was ambiguous or equivocal.282 The “trial court was not
in error in finding Blackburn’s statement ambiguous and
in need of clarification before continuing with the interrogation.”283 The State bore the heavy burden to demonstrate that Blackburn knowingly and intelligently
waived his Miranda rights. The court announced that
“[t]he ambiguity of his answer leaves the waiver of his
Miranda rights in question. As such, the officer had a
duty to clarify Blackburn’s statement to determine if he
wanted an attorney.”284
Last spring, the South Dakota Supreme Court in
Blackburn reiterated what it previously held in Tuttle:
in a pre-waiver situation where the accused has not yet
validly waived the Miranda rights, the officers must
clarify the waiver before proceeding with the interview.267 As with Rodriguez and Fry, the Blackburn
court determined that the burden is on law enforcement
and not on the suspect to clarify an ambiguous statement.268
Blackburn was charged with the murder of his
girlfriend.269 He was initially stopped by the police
while driving the victim’s car.270 Blackburn was interviewed twice.271 The trial court determined that any
statements by Blackburn during the first interview were
not admissible because Blackburn repeatedly said he
was drunk and would not answer questions until he was
sober.272 Blackburn’s requests for an attorney were ignored.273 According to the court, “Blackburn requested
an attorney more than twenty-five times and also repeatedly refused to talk to anyone. The interrogating officers did not heed Blackburn’s requests during the first
Vii. ConClusion
interview. Blackburn was not permitted to call an attorney at any time.”274
After being advised of his Miranda rights during
the second interview, which was videotaped,275 BlackFrom my vantage point, Rodriguez, Fry, Blackburn said,
burn, and the other cases discussed reached their proper
conclusions because they did not extend Davis, were
I mean I’d like, I’d like there to be a
based on sound reasoning, and were consistent with
lawyer present just so I don’t fuckin’ step
prior Supreme Court holdings. This trend may evolve
myself over the deep end or nothing else,
into the majority rule in most jurisdictions. Hopefully,
but I mean at this point I really don’t see
other courts will similarly find that in situations where
why there needs to be one because I, I rea suspect makes an ambiguous statement after being Mially I want to know that you guys
randized, the police have an obligation to seek clarifi64
Winter 2009
cation of that statement. This clarification approach,
which places the burden on law enforcement, would be
consistent with Miranda.
If nothing else, Davis and the subsequent cases
interpreting it invite judges, lawyers, and academics to
build on the arguments presented to create practical
moderate solutions to the issue of ambiguous requests
for counsel. The limitations placed on ambiguous requests for counsel under Davis seem destined to remain
in place. Attorneys will likely continue to litigate over
this issue, just as the courts will continue to grapple with
this issue of when a suspect must be clear in requesting
a lawyer.
Assistant Federal Public Defender (Capital Habeas Unit), Federal Public Defender’s Office, Western District of Pennsylvania; Former Deputy
State Public Defender, Colorado; LL.M (Litigation & Dispute Resolution), The George Washington Law School; J.D. St. Mary’s School of
Law: B.A., Sonoma State University.
2
512 U.S. 452 (1994). Prior to Davis v. United States, the courts were
divided on their requirements for invoking Miranda. Some courts have
treated a suspect’s ambiguous remarks regarding their Miranda rights as
a clear invocation under Miranda v. Arizona. For example, in the past, it
was the rule in California that an invocation need not be clear or obvious. These courts have consistently ruled that officers must terminate an
interview if the suspect makes an ambiguous remark that merely indicates that he might be invoking his Miranda rights. See, e.g., People v.
Porter, 270 Cal. Rptr. 773, 775–76 (Ct. App. 1990) (reasoning that defendant’s statements, while ambiguous as to whether he was invoking his
Miranda rights, suggested that he did not wish to further discuss the case
and police officers therefore should have ceased interrogation).
3
See Davis, 512 U.S. at 461–62.
4
Id.; U.S. CONST. amend. V.
5
Davis, 512 U.S. at 461–62.
6
Id. at 455.
7
See id. at 459 (explaining that the suspect must express his desire to
have a counsel present with sufficient clarity as to be understood by a
reasonable police officer).
8
See id. at 459–60 (suggesting that a bright–line rule would provide constitutional protection without burdening police investigation).
9
384 U.S. 436 (1966).
10
Id. at 480.
11
See David Aram Kaiser & Paul Lufkin, Deconstructing Davis v.
United States: Intention and Meaning in Ambiguous Requests for Counsel, 32 HASTINGS CONST. L.Q. 737, 760 (2005) (arguing that Davis’ requirement of a clear invocation of Miranda allows police and the courts
to ignore circumstantial evidence that may indicate a suspect’s unexpressed intentions).
12
See Davis, 512 U.S. at 470–71 (Souter, J., concurring) (discussing the
difficulty in distinguishing between initial waiver situations and postwaiver requests).
13
518 F.3d 1072 (9th Cir. 2008).
14
637 F.2d 1291 (9th Cir. 1981).
15
See Rodriguez, 518 F.3d at 1080 (explaining that Davis abrogated the
clarification rule only to the extent that the rule required clarifications of
invocations made post-waiver).
16
Id.
17
Id. at 1081.
18
No. CR-09-44-N-JLQ, 2009 WL 1687958 (D. Idaho June 16, 2009).
19
See id. at *8 (referring to Miranda’s assertion that if an individual indi1
Criminal Law Brief
cates at any time prior to or during custodial interrogation that they want
an attorney, the interrogation must cease).
20
766 N.W.2d 177 (S.D. 2009).
21
Id. at 182.
22
Miranda, 384 U.S. at 473–74. Miranda goes on to state that “[a]t that
time, the individual must have an opportunity to confer with the attorney
and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.”
Id. at 474.
23
See Floralynn Einesman, Confessions and Culture: The Interaction of
Miranda and Diversity, 90 J. CRIM. L. & CRIMINOLOGY 1, 3 (1999) (arguing that Miranda recognized the “inherent coercion of incommunicado
police interrogation” and acknowledged that police officers use “sophisticated psychological ploys” and trickery to induce a suspect’s confession).
24
See id. (stating that previously, the Court protected against self-incrimination by applying the Fifth and Fourteen Amendment right to due
process and the Sixth Amendment right to a counsel).
25
Id. at 2–3.
26
See id. (noting that required Miranda warnings provide an additional
safeguard against potentially coerced confessions).
27
See Miranda v. Arizona, 384 U.S. 436, 498 (1966) (concluding that defendant must be apprised of his rights in order to ensure that he made a
knowing and voluntary waiver of those rights when he confessed).
28
LAURENCE H. TRIBE, THE INVISIBLE CONSTITUTION 174 (2008).
29
See Miranda, 384 U.S. at 469–71 (explaining the importance of apprising a suspect of his rights regardless of the suspect’s personal characteristics or the circumstances surrounding the interrogation).
30
Id. at 471 (quoting Carnley v. Cochran, 369 U.S. 506, 513 (1962)).
31
Id. at 473–74 (emphasis added) (footnote omitted).
32
See Davis v. United States, 512 U.S. 452, 471 (1994) (Souter, J., concurring) (discrediting the distinction between initial waivers and subsequent decisions to reinvoke Miranda rights); see also United States v.
Gotay, 844 F.2d 971, 974 (2d Cir. 1988) (indicating that a suspect’s
stated desire for counsel despite inability to afford counsel was an unambiguous request that precluded further interrogation).
33
See Miranda, 384 U.S. at 471–72 (stating that only a suspect’s express
waiver after an unambiguous warning would constitute a knowing
waiver of right to counsel).
34
See Brooke B. Grona, Note, United States v. Dickerson: Leaving Miranda and Finding a Deserted Statute, 26 AM. J. CRIM. L. 367, 367–68
(1999) (evaluating the practice of the Court to ignore the procedural
safeguards established in Miranda).
35
See Davis, 512 U.S. at 457–58 (recognizing the judicially created
“knowing and intelligent” waiver standard is justified by the importance
of a suspect’s right against self-incrimination); Einesman, supra note 21,
at 45 (suggesting that despite Miranda’s declaration that a heavy burden
rests on the government to prove the defendant’s valid waiver of his
privilege against self-incrimination, the court often finds that the Government has sustained its burden of proof).
36
Miranda, 384 U.S. at 481.
37
Davis, 512 U.S. at 457 (citing Michigan v. Tucker, 417 U.S. 433, 443–
44 (1974)); see also U.S. CONST. amend. V.
38
Miranda, 384 U.S. at 468–69.
39
See id. at 445 (noting the importance of understanding the circumstances under which the interrogations at issue had occurred and discussing several physically coercive methods that police officers utilize to
elicit confessions).
40
Id. at 442–43 (quoting Brown v. Walker, 161 U.S. 591, 595–96
(1896)).
41
Id. at 444–45; see also Donald A. Dripps, Supreme Court Review: Forward: Against Police Interrogation—And the Privilege Against Self-Incrimination, 78 J. CRIM. L. & CRIMINOLOGY 699, 701 (1988) (asserting
that an outright repeal of the privilege against self-incrimination is impractical, and subversive interpretation is inconsistent with principled
65
constitutionalism).
42
Id.
43
Id.
44
See George C. Thomas III, Dialogue on Miranda: Is Miranda a RealWorld Failure? A Plea for More (And Better) Empirical Evidence, 43
UCLA L. REV. 821, 827 (1996) (suggesting that the bias of researchers
may have impacted findings on the consequences of the reading of Miranda rights).
45
See id. at 832 (positing that police are more likely to obtain a confession during an interrogation when they are more serious about the investigation, regardless of whether warnings are given).
46
Id. at 831–32. See also Yale Kamisar, On the Fortieth Anniversary of
the Miranda Case: Why We Needed It, How We Got It—And What Happened to It, 5 OHIO ST. J. CRIM. L. 163, 177 (2007) (indicating that negligible impact of Miranda has prompted some to argue that the Miranda
ruling should be extended).
47
See Thomas, supra note 44, at 833 (proposing that there is a correlation between the seriousness of a crime and a suspect’s psychological
need to confess).
48
See Steven B. Duke, Does Miranda Protect the Innocent or the
Guilty?, 10 CHAP. L. REV. 551, 556 (2007).
49
See Harvey Gee, Essay: When do you have to be clear? Reconsidering
Davis v. United States, 30 Sw. U. L. Rev. 381, 403 (2001) (citing Bill
Kisliuk, Maintaining Miranda, S.F. Recorder, Nov. 5, 1999, at 4).
50
Id. at 403 n. 128 (noting that “[t]he protections for individuals against
government power during the 1960’s diminished during the 1970’s. This
curbing was caused by the appointment of a conservative majority to the
U.S. Supreme Court and the appointment of Warren E. Burger as Chief
Justice to succeed Earl Warren.”)
51
Id. at 403 n.129 (citing Harris v. New York, 401 U.S. 222, 223 (1971)
(permitting the use of defendant’s contradictory statements made to the
police during interrogation to impeach credibility of his direct testimony
at trial)).
52
Id. at 403 n. 130 (citing New York v. Quarles, 467 U.S. 649, 655–56
(1984) (permitting a waiverless confession by a suspect that led a police
officer to a loaded gun in a crowded supermarket)).
53
Id. at 404 n. 131 (citing Anders v. California, 386 U.S. 738, 745 (1967)
(stating that counsel is not required to brief the case against their client);
Harris, 401 U.S. at 224 (stating that evidence barred Miranda in a prosecutor’s case-in-chief is not barred for all purposes); Michigan v. Tucker,
417 U.S. 433, 445–46 (1974) (stating that police did not abridge suspect’s privilege against self-incrimination by departing from the proplylactic standards of Miranda); Michigan v. Mosely, 423 U.S. 96, 102–03
(1975) (stating that Miranda does not require police to refrain from
questioning a suspect for an indefinite duration once a suspect invokes
their right to remain silent); Quarles, 467 U.S. at 654 (stating that Miranda warnings are not themselves rights protected by the Constitution);
see also Laurie Levenson, Back to the Future, S.F. Daily J., Dec. 30,
1999, at 5 (discussing the narrowing of the scope of Miranda protections
since its decision)). In so doing, the Court has substantially reduced the
prophylactic protections of a suspect’s assertion of Fifth Amendment
rights during interrogation. The Court has interpreted Miranda to permit
the resumption of questioning after a suspect has exercised his right to
remain silent. Questioning may resume as long as (1) the suspect’s right
has been scrupulously honored and questioning ceased, (2) a significant
amount of time has passed since the suspect invoked his right, (3) the
suspect is again informed of his rights, and (4) the second interrogation
is restricted to a crime that is not a subject of an earlier interrogation.
Mosely, 423 U.S. at 104–07.
54
462 U.S. 1039 (1983).
55
Gee, supra note 49, at 404 n. 132 (citing Bradshaw, 462 U.S. at 1045–
46 (holding that initiation of a conversation by the accused after invoking his right to counsel does not a constitute waiver of that right but
rather the police must engage in a two-step process to determine whether
the accused (1) initiated further conversation by asking, “[W]ell, what is
going to happen to me now?” and (2) made a knowing and intelligent
66
waiver of the right to counsel)). In this case, Justice O’Connor demonstrated her willingness to accept a police officer’s interpretation of a suspect’s statement for effective interrogation and investigation. Id. at
1046. Justice O’Connor sided consistently with conservative opinions
that gave police officers the benefit of the doubt, and interpreted a suspect’s mention of counsel in an increasingly restrictive manner. Id.).
56
Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for
the Abolition of Custodial Confessions in THE MIRANDA DEBATE: LAW,
JUSTICE, AND POLICING 142, 144 (Richard A. Leo & George C. Thomas
III eds., 1998).
57
See id. (suggesting that Miranda’s original bright–line rule was easy
for police to administer and that other than in situations of outright coercion, officers cannot know the limits in securing confessions).
58
451 U.S. 477 (1981).
59
Gee, supra note 49, at 404 n. 134 (citing David Lavey, Comment,
United States v. Porter: A New Solution to the Old Problem of Miranda
and Ambiguous Requests for Counsel, 20 GA. L. REV. 221, 239 (1985)
(explaining that the steady erosion of Miranda came to an abrupt halt
two years later in Edwards v. Arizona, where the Court vigorously reaffirmed and strengthened Miranda’s bright–line philosophy)).
60
Id. at 404 n. 136 (citing Davis, 512 U.S. at 458 (quoting McNeil v.
Wisconsin, 501 U.S. 171, 176–77 (1991)).
61
Id. at 404-05 n. 137 (citing Edwards, 451 U.S. at 484 (explaining that
a valid waiver cannot be established by showing that suspect responded
to further police-custodial interrogation after being advised of rights)).
62
469 U.S. 91, 91 (1984) (concluding that questioning must cease where
nothing about the request for counsel or the circumstances leading up to
the request is ambiguous).
63
479 U.S. 523, 529 (1987) (holding that a suspect may give a limited or
conditional waiver of Miranda rights).
64
486 U.S. 675, 677–78 (1988) (holding that an invocation of counsel
under Edwards was not offense specific).
65
498 U.S. 146, 153 (1990) (holding that the protection of Edwards continues even after the suspect has consulted with an attorney).
66
Gee, supra note 49, at 405 n. 146 (citing Smith, 469 U.S. at 96 (stating
that its holding is a limited one that does not address the effect of ambiguities that precede an accused’s request for counsel)).
67
Id. at 405-06 n. 147 (quoting Smith, 469 U.S. at 93).
68
Id. at 405-06 n. 148 (citing Smith, 469 U.S. at 96–97 (explaining that
the courts below improperly found defendant’s request for counsel to be
ambiguous in the context of his subsequent statements)).
69
See, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1045–46 (1983) (holding that defendant’s question, “[W]ell, what is going to happen to me
now?” evinced defendant’s willingness and desire for a generalized discussion about the investigation and consequently did not trigger Edwards
protections); Arizona v. Roberson, 486 U.S. 675, 685, 688 (1988) (holding that questioning a suspect who had invoked his right to counsel, but
had not received counsel, about a separate investigation triggered Edwards protections); Minnick v. Mississippi, 498 U.S. 146, 154, 156
(1990) (holding that police-initiated questioning of a defendant who had
isolated consultations with counsel, but whose counsel was absent when
the interrogation resumed, triggered Edwards protections).
70
Gee, supra note 49, at 406 n. 150 (citing Smith, 469 U.S. at 96).
71
Id. at 406.
72
Id. at 406 (citing Smith, 469 U.S. at 98).
73
See Davis v. United States, 512 U.S. 452, 461–62 (1994) (suggesting
the need to establish a balance that will protect an individual’s right to
counsel while facilitating effective police enforcement).
74
Gee, supra note 49, at 388.
75
See id. (quoting United States v. Davis, 36 M.J. 337, 341 (C.M.A.
1993)).
76
Gee, supra note 49, at 388 n. 49 (citing Davis, 512 U.S. at 456).
77
Id. at 388 n. 50 (citing Davis, 512 U.S. at 456).
78
See Davis, 512 U.S. at 461–62 (arguing that the clarity of the Edwards
rule would be diminished if police were required to cease questioning if
a suspect makes a statement that might be a request for an attorney).
Winter 2009
See id. (proposing that it would nonetheless be good police practice for
interviewing officers to clarify whether or not an individual would want
an attorney after an equivocal statement).
80
Id. at 455.
81
Gee, supra note 49, at 381-82 n. 8 (citing Davis, 512 U.S. at 458).
82
Davis, 512 U.S. at 454.
83
Id.
84
Id.
85
Id. at 455.
86
Id.
87
Davis, 512 U.S. at 455.
88
Id.
89
Id.
90
Id.
91
Id.
92
Davis, 512 U.S. at 455.
93
Id.
94
Id. at 455–56.
95
Id. at 453.
96
Id. at 454.
97
Davis, 512 U.S. at 461.
98
Id. at 460–61.
99
Id. at 458–59.
100
Id. at 461.
101
Davis, 512 U.S. at 461.
102
Id. at 460.
103
Id. at 461.
104
Id.
105
Id.
106
Davis, 512 U.S. at 459.
107
Id. at 461–62.
108
Id.
109
Id. at 461.
110
See infra, Part VI (discussing the Rodriguez, Blackburn and Fry cases
where officers did not receive a valid waiver but moved forward with
questioning).
111
See supra, Part II.A. (summarizing the Miranda Court’s decision and
the Court’s analysis of Fifth Amendment protections).
112
See generally Gee, supra note 49, at 384.
113
See Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Miranda, 17 WM. & MARY BILL
RTS. J. 773, 819–21 (2009).
114
Id. at 775.
115
Id.
116
See Kaiser & Lufkin, supra note 11, at 762.
117
See Davis, 512 U.S. at 466 (Souter, J., concurring).
118
Id.
119
Id. at 467.
120
Id.
121
See id. at 466. See also Charles R. Shreffler, Jr., Note, Judicial Approaches to the Ambiguous Request for Counsel Since Miranda v. Arizona, 62 NOTRE DAME L. REV. 460, 472 (1987) (arguing that the
clarification approach represents a reasonable balancing of interests between the individual defendant and society). “The clarification approach
shifts some of the pressure of custodial interrogation from the suspect to
law enforcement officials. Given the pressure inherent in such interrogations, it is reasonable to expect the state to carry some of the burden
placed on the suspect to clearly invoke the right to counsel.” Id. at 473.
122
Davis, 512 U.S. at 473–74 (Souter, J., concurring).
123
Id. at 469.
124
Id. (citations omitted). At his Senate confirmation hearing, Justice
Souter characterized Miranda as “a very pragmatic procedure that would
cut down on the degree of possibility that confessions would turn out to
be involuntary” and excluded from the court. See TINSLEY E.
YARBROUGH, DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE
REHNQUIST COURT 132 (Oxford University Press, Inc. 2005).
79
Criminal Law Brief
Davis, 512 U.S. at 466–67 (Souter, J., concurring).
Id.
127
Id. at 474–75.
128
Id. at 475.
129
Id. at 469–70.
130
Davis, 512 U.S. at 470. According to Justice Souter, “the awareness
of just these realities has, in the past, dissuaded the Court from placing
any burden of clarity upon individuals in custody, but has led it instead
to require that requests for counsel be ‘given a broad, rather than a narrow, interpretation,’ and that courts ‘indulge every reasonable presumption’ that a suspect has not waived his right to counsel under Miranda . .
. .” Id. (citations omitted).
131
Strauss, supra note 113, at 820.
132
Id. at 823.
133
Id.
134
Davis, 512 U.S. at 461–62.
135
Commonwealth v. Sicari, 752 N.E.2d 684, 697 n.13 (Mass. 2001).
136
380 F. 3d 915, 926 (6th Cir. 2004).
137
Id. at 918.
138
Id. at 919.
139
Id.
140
Id.
141
Abela, 380 F. 3d 915 at 919.
142
Id.
143
Id.
144
Id. at 926–27.
145
841 N.E.2d 945 (Ill. 2005).
146
Id. at 965.
147
Id.
148
252 S.W.3d 319 (Tex. 2008).
149
Id. at 326–27.
150
Id. at 321.
151
Id.
152
Id.
153
In the matter of H.V. 252 S.W.3d at 321.
154
Id.
155
Id.
156
Id. at 325–26.
157
Id. at 326.
158
In the matter of H.V. 252 S.W.3d. at 327.
159
See Charles D. Weisselberg, Mourning Miranda, 96 CAL. L. REV.
1519, 1585 (2008).
160
PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE 158
(The New Press 2009).
161
See Weisselberg, supra note 159, at 1583.
162
Welsh S. White, Deflecting a Suspect From Requesting an Attorney,
68 U. PITT. L. REV. 29, 40 (2006).
163
542 U.S. 600 (2004).
164
Id. at 606.
165
Id. at 604.
166
Id.
167
Id. at 604–05.
168
Seibert, 542 U.S. at 605.
169
Id.
170
Id.
171
Id. at 605–06.
172
Id. at 604.
173
Seibert, 542 U.S. at 604.
174
Id.
175
Id.
176
Id. at 611.
177
Id. at 617.
178
Seibert, 542 U.S. at 616.
179
Id. at 621 (Breyer, J., concurring) (citing Moran v. Burbine, 475 U.S.
412, 423–424 (1986)).
180
Id. at 617.
125
126
67
Yale Kamisar, Tribute, Postscript: Another Look at Patane and Seibert, the 2004 Miranda “Poisoned Fruit” Cases, 2 OHIO ST. J. CRIM. L.
97, 110 (2004).
182
743 So. 2d 65 (Fla. Dist. Ct. App. 1999).
183
Id. at 67.
184
Id.
185
Id. at 68.
186
Id. at 69.
187
951 P.2d 738 (Utah 1997).
188
Id. at 743.
189
Id. at 740.
190
Id.
191
Id.
192
Leyva, 951 P.2d at 740.
193
Id.
194
Id.
195
Id. at 741, 743.
196
Id. at 743 (citations omitted) (emphasis in original).
197
650 N.W.2d 20 (S.D. 2002).
198
Id. at 28.
199
Id. at 24.
200
Id. at 24–25.
201
Id. at 25.
202
Tuttle, 650 N.W.2d at 30.
203
Id.
204
Id.
205
857 A.2d 557, 572 (Md. Ct. Spec. App. 2004).
206
Id. at 559.
207
Id. at 560.
208
Id. at 561.
209
Id.
210
Freeman, 857 A.2d at 561.
211
Id. at 562.
212
Id. at 563.
213
Id. at 570.
214
Id. at 573.
215
937 So. 2d 86, 92 (Ala. Crim. App. 2005).
216
Id. at 87–88.
217
Id. at 87.
218
Id. at 87–88.
219
Id. at 88.
220
Collins, 937 So. 2d 86 at 88.
221
Id. at 93.
222
Id.
223
283 S.W.3d 558 (Ark. 2008).
224
Id. at 558.
225
Id. at 559.
226
Id. (emphasis omitted).
227
Id.
228
Robinson, 283 S.W.3d at 561.
229
ARK. R. CRIM. P. 4.5 (2007).
230
Robinson, 283 S.W.3d at 563 (Imber, J., concurring).
231
Id. (citations omitted).
232
Id. at 564 (Glaze, J., dissenting).
233
Id. at 565.
234
United States v. Rodriguez, 518 F.3d 1072, 1074 (9th Cir. 2008).
235
Id. at 1075.
236
Id.
237
Id.
238
Id.
239
Rodriguez, 518 F.3d at 1075.
240
Id.
241
Id. at 1077.
242
Id.
243
Id. at 1078 (emphasis in original) (citations omitted).
244
Rodriguez, 518 F.3d at 1078 (emphasis in original) (citations omit181
68
ted).
245
Id. at 1080.
246
Id. at 1081.
247
Id. at 1079 n.7.
248
United States v. Fry, No. CR-09-44-N-JLQ, 2009 WL 1687958 (D.
Idaho June 16, 2009).
249
Id. at *18.
250
Id. at *1.
251
Id.
252
Id. at *2.
253
Fry, 2009 WL 1687958 at *2.
254
Id.
255
Id.
256
Id.
257
Id. at *3.
258
Fry, 2009 WL 1687958 at *3.
259
Id.
260
Id. at *11.
261
Id. at *10 (emphasis in original).
262
Id. at *12.
263
Fry, 2009 WL 1687958 at *11 (emphasis in original).
264
Id. at *13.
265
Id. (citation omitted).
266
Id.
267
State v. Blackburn, 766 N.W.2d 177, 182 (S.D. 2009).
268
Id.
269
Id. at 178.
270
Id. at 179.
271
Id.
272
Blackburn, 766 N.W.2d at 179.
273
Id. at 184.
274
Id.
275
Videotaping is considered an additional procedural safeguard against
coerced confessions. Professor Duke suggests that the interrogation
process be improved with the use of video recording. He also advocates
for relaxing rules concerning the admissibility of expert confession testimony and having judges provide jury instruction guiding jurors evaluation of the credibility of confessions and incriminating statements. See
Duke, supra note 45, at 570.
276
Blackburn, 766 N.W.2d at 179.
277
Id. at 180.
278
Id.
279
Id.
280
Id. at 183.
281
Blackburn, 766 N.W.2d at 182.
282
Id. at 184.
283
Id.
284
Id. (citations omitted).
ABOUT THE AUTHOR
Harvey Gee is an Asst. Federal Defender (Capital Habeas
Unit), Federal Public Defender’s Office, Western District
of PA; Former Deputy State Public Defender, Colorado;
LL.M (Litigation & Dispute Resolution), The George
Washington Law School; J.D. St. Mary’s School of Law:
B.A.,
Sonoma
State
University.
Email:
[email protected]. Thanks to Prof. Gabriel Chin at the
University of Arizona James E. Rogers College of Law
for suggesting this topic, and Professors Andy Hessick and
Marc Miller for feedback on my presentation of this article
at a law teaching conference held at the University of Arizona in October 2009. Special thanks to the Criminal Law
Brief editors for all their hard work. The views expressed
herein are not necessarily attributed to any past, present
or future employers.
Winter 2009
Mixed Messages: The Supreme Court’s Conflicting Decisions
on Juries in Death Penalty Cases
By Kenneth Miller and david niven1
W
ere the jury made up of experienced
death penalty lawyers, it might understand these instructions . . . in the way
that the Court understands them. - Jutice
Breyer1
The right to a jury of one’s peers is fundamental
for those accused of criminal wrongdoing. For those
charged with a capital crime, a jury may be all that
stands between the defendant and a sentence of death.
However, a jury pool that systematically excludes members of certain races or individuals with reservations
concerning the death
penalty cannot be said to
satisfy the Sixth Amendment. Likewise, a jury that
cannot understand the law
it must follow, as set forth
in legal instructions, cannot
fulfill this vital function of
democracy, nor does such a
jury provide a defendant a
meaningful Sixth Amendment right to a jury trial.
Yet it is almost a truism that
jurors do not understand
their legal instructions and
that juries are hardly representative bodies.
Jury instructions, by and large, are written by
committees of lawyers, or are quoted verbatim from
statutory or case law. The result is jargon-ridden language that lawyers might understand, but laypersons
certainly would not understand. It is no surprise that social scientists have demonstrated repeatedly that, in a
myriad of settings using diverse methods, jurors do not
understand the instructions that are intended to guide
them. Researchers are not alone here; jurors themselves
register their confusion by requesting clarification from
trial judges. The criminal justice system, however, has
been slow to respond, and appellate courts continue to
“presume” that jurors understand their instructions, even
when jurors ask pointed questions regarding the meanCriminal Law Brief
ing of those same instructions. Moreover, capital proceedings continue, with the passive or direct support of
the Court, to assemble jury panels dramatically skewed
relative to the community as a whole. The Supreme
Court, in a series of decisions beginning with Apprendi
v. New Jersey,2 has expanded the role of juries in the
criminal sentencing process, granting juries many powers previously relegated to judges. Following Ring v.
Arizona,3 capital juries must be given the task of determining whether the prosecution has established the relevant aggravating circumstances that would make the
defendant eligible for the
death penalty. The Court
has also decided to expand
the role of juries under the
federal criminal sentencing
guidelines. We argue that
the expansion of Sixth
Amendment rights is necessarily bad, but we are
concerned with and will
explore the implications of
expanding the role of juries
in capital, as well as other
criminal cases, when juries
are not given sufficient
tools with which to work.
Specifically, juries cannot
hope to fulfill their duties when they do not understand
their instructions, when no effort is made to clarify those
instructions, and when juries under-represent certain
segments of the population.
In short, the Supreme Court has expanded a defendant’s right to a jury in capital cases without commensurate attention to the obligations on government
that would make that right meaningful. The legal and
social science literature is replete with commentary and
research on the alarming lack of understanding that jurors demonstrate in capital and other criminal cases.4
The fact that death qualification and voir dire exclude
certain members of society has been demonstrated repeatedly. Likewise, the literature is fairly consistent in
praising the expansion of a criminal defendant’s Sixth
69
Amendment rights. What we show, however, is that
when these two trends are laid side by side, there is a
troubling – even glaring – lack of congruity between the
expansion of the Sixth Amendment and any effort to
make that right meaningful.
More to the point, Rehnquist, Scalia, and
Thomas, seem particularly willing to expand Sixth
Amendment rights without thought to corresponding
governmental obligations to animate that right. The collective jurisprudence of Rehnquist, Scalia, and Thomas
in one area is completely uninformed by their jurisprudence in another area. This leads to quite troubling implications regarding the justice of capital and other
criminal trials.
The expAnding sixTh AmendmenT
The Sixth Amendment guarantees the right to a
trial by jury for the criminally accused. But what is the
nature of that right? It is not enough to say that the jury
determines the defendant’s guilt or innocence, for the
Sixth Amendment means much more – and less – than
the mere determination of guilt. Indeed, the nature and
extent of a criminal defendant’s right to a jury has
changed considerably over time. It was not until 1970,
when the United States Supreme Court decided In re
Winship, that the familiar “reasonable doubt” standard
became a constitutionally required element of criminal
due process.5 After reflecting on a long tradition of
using the reasonable doubt standard in criminal trials in
the United States, the Court found it necessary to state:
“[l]est there remain any doubt about the constitutional
stature of the reasonable-doubt standard, we explicitly
hold that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.”6 After Winship, then, a criminal defendant appeared to have a constitutional right to
a jury determination of his or her guilt “beyond a reasonable doubt.”7
However, the Court complicated matters in an
opinion written by Rehnquist, 8 when it failed to overturn a state statute that increased the sentence of a person convicted of a felony by five years based on a
judicial finding – by a preponderance of the evidence –
that the person “visibly possessed” a firearm.9 The
Court reasoned that the “visible possession” of a firearm
portion of the statute was not an element of the crime;
rather, it was a “sentencing consideration” and did not
70
subject the defendant to a greater penalty than he would
have been subject to otherwise under the statute.10 Rehnquist stated that because they “concluded that Pennsylvania may properly treat visible possession as a
sentencing consideration and not an element of any offense, we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence
turns on specific findings of fact.”11 In other words, the
criminal defendant’s Sixth Amendment right was limited to jury determinations of elements of the crime, not
sentencing considerations, and the distinction between
elements of the crime and sentencing considerations was
a matter of statutory construction. The only limit
McMillan placed on a sentencing consideration was that
it not impose a sentence beyond the maximum allowed
by the underlying charge.
The McMillan decision left open the question of
whether, upon conviction for first degree murder, a person was entitled to a jury determination of any facts that
could expose him or her to a death sentence. In Walton
v. Arizona (1990),12 the Court considered Arizona’s capital sentencing scheme, which called for a judge to determine the existence of aggravating factors during the
sentencing phase of a first-degree murder trial. If the
judge found at least one aggravating factor, the defendant was eligible for the death penalty and would avoid
that sentence only if the judge found sufficient mitigating circumstances that called for leniency. The Court
upheld this capital sentencing scheme, stating that the
factors that led to a death sentence were not elements,
but sentencing considerations that did not entitle a defendant to a jury consideration. Accordingly, the Court
concluded that the sentencing scheme did not violate the
Sixth Amendment.13
Thus, after Walton, it was clear that a defendant’s sentence could be increased up to and including
death if that sentence was one that fell within the
charged crime’s sentencing range even if a judge rather
than a jury found the facts necessary to increase the sentence, and even if the judge found the necessary facts
by a standard of proof less rigorous than beyond a reasonable doubt. What was left unanswered by Walton,
however, was whether a defendant’s sentence could be
increased beyond McMillan’s ‘statutory maximum.’
The Court addressed just such a question in Jones v.
United States (1999),14 when the defendant was convicted of a federal carjacking, a statute that carried with
it a maximum sentence of fifteen years. The defendant
was eventually sentenced to twenty-five years after a judicial finding that serious bodily injury had occurred
Winter 2009
during the course of the crime.15 On appeal, the Court
concluded that the finding of “serious bodily injury” was
an element of the crime rather than a mere sentencing
consideration because, after an analysis of similar federal criminal statutes, “Congress probably intended serious bodily injury to be an element defining an
aggravated form of the crime.”16 Accordingly, Jones
stood for the proposition that if a defendant’s sentence
increased because of statutorily constructed elements (as
opposed to sentencing considerations) the defendant
was entitled to a jury determination beyond a reasonable
doubt on the facts necessary to support those elements.17
Although Jones could be seen as a decision favorable to defendants, the extent of the Sixth Amendment right after Jones was somewhat truncated. A
defendant was clearly entitled to a jury determination
beyond a reasonable doubt on every element that constituted the crime. The Court had carved away that
right, however, so that an “element” of the crime did not
include – nor was a defendant entitled to a jury determination thereof – every factor that increased his or her
sentence.
In a groundbreaking case, the Court in Apprendi
v. New Jersey,18 opened the door to a broader Sixth
Amendment right than McMillan suggested. In Apprendi, the defendant was charged under state law with
criminal possession of a firearm, which carried with it a
prison sentence of up to ten years. After pleading guilty,
the trial court determined by a preponderance of the evidence, that Apprendi violated the state’s hate crime
statute. Apprendi was sentenced to twelve years based
on this finding – a sentence two years in excess of the
statutory maximum. On appeal, the state defended Apprendi’s sentence, arguing that the state hate crime
statute was merely a permissible “sentence enhancement” similar to the enhancement upheld in McMillan.
The Court disagreed, noting that “[a]s a matter of simple
justice, it seems obvious that the procedural safeguards
designed to protect Apprendi from unwarranted pains
should apply equally to the two acts that New Jersey has
singled out for punishment. Merely using the label ‘sentence enhancement’ to describe the latter surely does not
provide a principled basis for treating them differently.”19 The Court noted that Apprendi was “indisputably” entitled to “a jury determination that he is
guilty of every element of the crime with which he is
charged, beyond a reasonable doubt.”20 And then, as if
to reiterate the point, the Court stated that “[e]qually
well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt.”21 The
Criminal Law Brief
Court went on to trace the history of criminal jury trials
and admitted that it “coined” the term “sentencing factor” in its McMillan decision, creating a species of criminal law facts that were not determined by a jury but
could nevertheless “affect the sentence imposed by the
judge.”22 The Court concluded that based on its own decisions and the history of criminal law in the United
States “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”23 “It is
unconstitutional for a legislature to remove from the jury
the assessment of facts that increase the prescribed range
of penalties to which a criminal defendant is exposed.
It is equally clear that such facts must be established beyond a reasonable doubt.”24
The Court seemed untroubled that its ruling
could be considered overruling Walton, in which the defendant’s sentence was set at life in prison and, but for
the trial court’s factual findings, could not be increased
to a sentence of death. The Court rejected this concern,
stating that “once a jury has found the defendant guilty
of all the elements of an offense for which carries as its
maximum penalty the sentence of death, it may be left
to the judge to decide whether that maximum penalty,
rather than a lesser one, ought to be imposed.”25 The
Court, with Apprendi, expanded the right to a jury trial
but carved out an exception for capital cases in which
judges could determine the facts necessary to impose a
sentence of death.
It only took two years for the Court to overturn
that exception, however. In Ring v. Arizona (2002),26
the Court again considered the Arizona capital sentencing scheme it had previously upheld in Walton: “Capital
defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on
which the legislature conditions an increase in their
maximum punishment.”27 Contrasting its holding in Apprendi, the Court stated that “[t]he right to trial by jury
guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years,
but not the fact-finding necessary to put him to death.”28
The Court held that “to the extent [a capital sentencing
scheme] allows a sentencing judge, sitting without a
jury, to find an aggravating circumstance necessary for
imposition of the death penalty,” that scheme is unconstitutional.29
For our purposes here, Ring marks the state-ofthe-art Sixth Amendment jurisprudence concerning cap71
ital defendants. However, two recent decisions show must be determined by a jury beyond a reasonable
how the Court is continuing to expand the right to a jury doubt, and
- Capital defendants, no less than other criminal
in non-capital cases. In Blakeley v. Washington,30 the
Court considered the meaning of “statutory maximum” defendants, are entilted to all the protections of the Sixth
as it applies to Sixth Amendment jurisprudence. At Amendment. This expansion in the meaning of the Sixth
issue was a state law that allowed a sentencing judge to Amendment is encouraging for proponents of robust defendant rights. It removes factual dedepart from the standard senterminations that can determine the
tencing range if the judge found
For
the
capital
defenfate of the criminal defendant from
the defendant acted with “deliberate cruelty.”31 The Court held
dant to have a mean- the hands of the government (in these
cases judges). But for any right to be
that “the “statutory maximum
ingful right to a jury meaningful, it must be accompanied
for Apprendi purposes is the
maximum sentence a judge may
trial, it is incumbent by corresponding obligations that are
fulfilled by appropriate actors. For
impose solely on the basis of
facts reflected in the jury verdict upon the legal system the capital defendant to have a meanor admitted by the defendant . .
to ensure that, among ingful right to a jury trial, it is incumbent upon the legal system to ensure
. . In other words, the relevant
other
things:
the
jury
is
that, among other things: the jury is
‘statutory maximum’ is not the
maximum sentence a judge may
adequately informed adequately informed of the appropriate law; there are adequate safeguards
impose after finding additional
of
the
appropriate
law;
in place to ensure that a misinformed
facts, but the maximum he may
jury is properly corrected; and the seimpose without any additional
there
are
adequate
32
lected jury is free from bias or prejufinding.” The Court’s opinion
safeguards
in
place
to
dice.
was not remarkable because it
broke with the Apprendi ruling,
ensure that a misinJuRoR misundeRsTAnding
but rather because it called into
question the federal sentencing formed jury is properly
guidelines, which look a lot like
It would seem that in matters as
corrected; and the sethe state sentencing scheme
weighty as capital jury deliberations,
overturned by the Court. As if lected jury is free from the Court would vigorously strive to
on cue, the Court examined the
ensure that jurors understand their inbias or prejudice.
federal sentencing guidelines in
structions – instructions that are comUnited States v. Booker
plex and replete with legalese.
33
(2005). In Booker, the Court fell short of invalidating Knowing what we know about jurors (especially capital
the federal sentencing guidelines but did confirm that jurors) and the instructions they are required to follow,
the guidelines were also subject to the requirements of the criminal justice system should demonstrate both an
the Sixth Amendment as stated in Apprendi.34 The awareness that jurors frequently will not understand
Blakely and Booker decisions merely confirm that the those instructions 35 and a willingness to redress misunCourt is intent on expanding the right to a jury trial.
derstandings as they arise.
This brief overview of the Court’s recent Sixth
Instead, the law in this area is based on a preAmendment jurisprudence demonstrates that the right sumption that jurors understand and follow their instructo a jury trial has expanded considerably since In re Win- tions.36 As the Court emphatically stated, “we adhere to
ship. As it stands now, the right to a jury trial means, at the crucial assumption underlying our constitutional sysleast, that:
tem of trial by jury that jurors carefully follow instruc- The defendant is entilted to a jury determina- tions.”37 Of course, a weak presumption (or
tion of each and every element of the crime;
assumption38) that jurors understand their instructions
- The jury must be convinced beyond a reason- would serve this purpose well. Capital trials would opable doubt about each and every element;
erate effectively if it were assumed that jurors under- Despite a flirtation with “sentencing consider- stand and follow their instructions absent evidence to
ations,” any fact that increases a defendant’s sentence the contrary. But, it does not work that way. Rather,
72
Winter 2009
the presumption that jurors understand their instructions
is used to buttress against attacks on death sentences and
other criminal convictions. The blind allegiance to the
presumption that jurors understand their instructions is
so overwhelming that it has nearly morphed into a standard whereby appellate courts look the other way despite overwhelming evidence that jurors fail to
comprehend their instructions.
As a threshold matter, it would seem that if a defendant raises the possibility that the jury instructions
are subject to competing interpretations, one of which
would result in unconstitutional considerations, a reviewing court should first look at the instruction itself
for the claimed ambiguity. If the instruction is subject
to at least one unconstitutional interpretation, it is probably not possible to determine whether the jury applied
the correct interpretation – after all, appellate judges
cannot step inside the minds of jurors. Instead, following a developing line of argument first introduced in dissent then later marshaled for the majority, Rehnquist has
successfully advanced the notion that the possibility of
unconstitutional interpretation need not impinge on the
Court’s confidence in producing a just verdict.
Thus, even when the jury questions a judge on
an ambiguous instruction and receives an ambiguous response, that jury is, in the words of Rehnquist, “presumed both to follow its instructions and to understand
a judge’s answer to its question.”39 As Scalia admits, the
presumption is closer to an article of faith than a demonstrable truth: “The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in
the absolute certitude that the presumption is true than
in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.”40
But does available evidence support the position
that jurors understand and follow their instructions? It
does not. The list of studies demonstrating the inability
of typical citizens to process, much less faithfully act
upon, jury instructions is capacious.41 Social science evidence suggests that misunderstood instructions do not
merely confuse juries, they tend to tilt the process in the
prosecution’s favor.
While any legal process built upon a foundation
of misunderstanding is intolerable, both legally and logically, the weakness of juror instructions is also a logistical impediment to the functioning of our courts. For
example, a comprehensive study of the legal fates of
capital defendants found that fully 20% of death sentence reversals are based on unconstitutional jury inCriminal Law Brief
structions.42
Two areas of capital sentencing instructions that
have proved particularly fertile for producing challenges
based on potential juror misunderstanding are mitigation
instructions and definition of sentence instructions.
Mitigation
When a divided Court permitted the re-implementation of the death penalty in Gregg v. Georgia
(1976),43 only four years after a similarly divided Court
had effectively suspended the death penalty in Furman
v. Georgia,44 justices sought to establish boundaries for
its use. The death penalty, the Court ruled, may only
be imposed if it is “directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”45
In Gregg, and a series of subsequent cases, the
Court established the value of a bifurcated trial process.
Typically, a single jury in a capital case would, in effect,
sit through two trials, deliberate twice, and reach two
verdicts. In the first, as in any non-capital trial, the jury
would hear evidence and render a verdict on guilt. If
the defendant were found guilty of a capital crime, the
jury then would hear evidence relating to the nature of
the crime and the nature of the defendant and render a
verdict on the appropriate sentence.
In the sentencing phase of the trial, the prosecution seeks to establish aggravating evidence – typically
relating to the heinousness of the crime and the depravity of the defendant. The defense is entitled to rebut
those claims, and is also entitled to introduce evidence
relating to any aspect of the defendant’s character or
background that might mitigate the defendant’s actions
and suggest a sentence short of death.46 The Court has
ruled that mitigating evidence is not subject to a “beyond a reasonable doubt” standard, and can result in a
verdict rejecting the death sentence based on juror
agreement that mitigation exists, even if jurors do not
unanimously agree on specific mitigating factors.47
Despite the gravity of a death sentence deliberation, and the centrality of weighing aggravating and
mitigating evidence to that process, numerous academic
studies suggest that jurors are ill-equipped or disinclined
to adequately consider mitigating evidence.48 In short,
many jurors do not understand the instructions they are
given by the courts that are supposed to guide their deliberations and verdict. The consequences of misunderstanding are considerable. “If the jury does not
understand how the law requires it to establish, weigh,
and balance aggravation and mitigation,” Wiener and
colleagues argue, “then it may well be requiring the de73
fendant to forfeit his or her life without the benefit of
due process of law.”49
To test juror understanding of the death sentencing and deliberation process, one study used members
of the jury pool in Columbus, Ohio who were awaiting
assignment to a case.50 The researchers showed those
jurors a video summarizing a capital case, followed by
the actual instructions read by a judge.51 After a period
of deliberation, jurors were given a multiple-choice test
to measure their understanding of their duties.52 The
questions most frequently answered incorrectly involved the concept of mitigation.53 The questions most
frequently answered correctly involved the concept of
aggravation.54
Another study used a similar method with jury
eligible citizens in the St. Louis area.55 After supplying
the typical instructions offered by Missouri courts in
capital cases, they found only a 50% rate of understanding for mitigation concepts.56
When a 1994 study provided California juror instructions to a college student sample, they also found
fewer than half could explain mitigation.57 More alarmingly, one-fourth of the subjects thought a mitigating
factor (such as mental illness) was a basis for supporting
a death sentence.58
While these studies employ a variety of proxy
groups to substitute for actual deliberating capital juries,
there is little doubt that the patterns unearthed apply in
the jury room. Indeed, surveys of former capital jurors
confirm confusion regarding mitigating factors and a
willingness to see mitigating evidence as irrelevant.59
One capital juror summed up the mitigating evidence
presented in the sentencing proceeding: “It was interesting, but it had no bearing on the case…his whole life
boils down to this once incident.60
Beyond discounting mitigating evidence, research suggests the application and weighing of mitigating factors can be dependent on personal biases. One
survey of former capital jurors found that contrary to the
laws and their sworn duty, jurors were less apt to value
mitigating evidence if they felt empathy for the victim.61
Empathy, in turn, was affected by factors including the
race of the victim.
One could summarize the situation by noting
that “existing literature converges on a serious challenge
to the assumption that reasonable individuals understand
jury instructions,” and therefore, “courts should be cautious in concluding that reasonable people understand
mitigation and aggravation as presented in pattern instructions.”62 In fact, contrary to all applicable laws, the
74
typical juror enters the sentencing proceeding with a
“presumption of death.”63 Instead of alleviating that
legal misconception, court instructions often exacerbate
it by leaving jurors confused.
Of course, the significance of juror understanding of capital instructions and the nature of aggravating
and mitigating circumstances is only amplified by the
expansion of the jurors’ role in capital sentencing. Indeed, as some point out: “[t]he logic followed in Ring
highlights the importance that the Court assigns to the
way in which judges and jurors use aggravating and mitigating circumstances to reach penalty decisions.”64
Given the increasing centrality of jurors in the
capital sentencing process, and the strong academic evidence of juror confusion regarding sentencing generally
and mitigation specifically, it is not surprising that a
number of cases have advanced to the Supreme Court
for review hinging on the role and definition of mitigation, for example: Franklin v. Lynaugh 65; Buchanan v.
Angelone66; Boyde v. California67; and Weeks v. Angelone.68 In one aggravation case Francis v. Franklin,69
Rehnquist found himself advancing an argument that
pertinent instructions need not be clarified, amplified,
defined, or sometimes even mentioned.70 In the four
cases Scalia participated in, and in the two Thomas took
part in, they shared Rehnquist’s conclusion. More to the
point, over time, the conservatives’ perspective on capital jury instructions has become the Court’s perspective.
The capital prosecution of Raymond Franklin
hinged on the defendant’s intent. To win a jury verdict
of malicious murder in Georgia, and to pursue a death
sentence, prosecutors had to prove Franklin intended to
kill his victim.
Franklin was imprisoned for a non-capital offense when he was taken, shackled and guarded, to a
civilian dentist.71 Temporarily unshackled while in the
dentist’s office, Franklin was able to take an officer’s
gun and alight with a hostage from the dental office.72
Franklin made several unsuccessful efforts to steal a
car.73 Franklin and the hostage eventually walked to a
nearby home where Franklin knocked on the door and
demanded the resident’s car keys.74 The resident
slammed the door, after which Franklin fired the gun
twice.75 Both shots went through the door; the first
killed the homeowner, the second lodged in the home’s
ceiling.76
Franklin’s entire defense was lack of intent.77
He claimed that the shooting was not intentional, pointing to the fact that neither the people he encountered on
Winter 2009
the street nor his hostage were harmed.78 The fact that Rehnquist, it would appear, the standard for an unconthe second shot went into the ceiling, Franklin claimed, stitutional instruction must demonstrate it to be not only
was evidence that he was not attempting to kill the vic- unconstitutional but also verbose.
In fact, Rehnquist conceded that a “technical
tim.79
The aggravation instructions given to the jury analysis of the charge…from a legal standpoint” would
addressed the issue of intent.80 One hour into their guilt support the Court’s conclusion that the instructions were
phase deliberations the jury asked for further instruc- misleading.92 However, no “reasonable juror” could
tions on the issue of intent and the definition of acci- have read the instructions closely enough to form the
dent.81 After hearing the original instructions repeated misimpression the Court posits.93 Indeed, Rehnquist
the jury deliberated for ten additional minutes before re- suggested “the Court is attributing qualities to the averturning a guilty verdict.82 Franklin was sentenced to age juror that are found in very few lawyers.”94
death the next day.83
Brennan took suspicious note of Rehnquist’s
conclusion that jurors would not
Franklin’s attorneys argued that the jury instructions inRehnquist did not find have paid enough attention to the
verted the burden of proving
instructions to be affected by the
the burden of disprov- contradiction. In a previous case,
intent and placed that burden on
the defense, and Justice Brennan,
v. Randolph, in which the
ing intent to be placed Parker
prosecution’s argument hinged on
writing for a five to four majority,
on the defense because close juror attention to the instrucagreed; he wrote that the instructions, Rehnquist was burdened by
tion on intent “violate[d] the
at
any
given
moment
no doubts regarding juror rigor.
Fourteenth Amendment’s rethe
prosecution
could
Rehnquist wrote for the Court,
quirement that the State prove
“[a] crucial assumption underlying
every element of a criminal ofswitch
sides
and
at[trial by jury] is that juries will folfense beyond a reasonable
tempt to present a case low the instructions given them by
doubt.”84 The instruction created
a “mandatory presumption”
the trial judge. Were this not so, it
disproving
intent.
where proving the act (firing the
would be pointless for a trial court
gun) in effect established the into instruct a jury, and even more
tent and that “a reasonable juror” would understand the pointless for an appellate court to reverse a criminal coninstructions to shift “to the respondent the burden of per- viction because the jury was improperly instructed.”95
suasion on the element of intent once the State had Thus, Brennan chides, “[a]pparently [Rehnquist] would
have the degree of attention a juror is presumed to pay
proved the predicate acts.”85
The Court emphasized the phrase “may be re- to particular jury instructions vary with whether a prebutted” implied that it was the defendant’s burden to es- sumption of attentiveness would help or harm the crimtablish that an intent “inference was unwarranted.”86 inal defendant.”96
Separately, the instructions did note, “criminal intention
Instead of burdening the defense with disproving
87
may not be presumed.” But Brennan concluded that intent, Rehnquist concluded the typical juror would have
the language “merely contradicts” but does not “ab- approached the situation far differently. Rehnquist
solve” the instruction’s infirmity.88 Indeed, he noted, “a wrote: “[t]he reasonable interpretation of the challenged
reviewing court has no way of knowing which of the charge is that…the presumption could be rebutted by
two irreconcilable instructions the jurors applied in the circumstances surrounding the acts, whether prereaching their verdicts.”89
sented by the State or the defendant.”97 In other words,
Rehnquist’s dissent was incredulous, stating, Rehnquist did not find the burden of disproving intent
“today the Court sets aside Franklin’s murder convic- to be placed on the defense because at any given motion…because this Court concludes that one or two sen- ment the prosecution could switch sides and attempt to
tences out of several pages of instructions given by the present a case disproving intent.
While the minority in this case, Rehnquist’s unjudge” lowered the state’s burden of proof.90 Indeed,
later in his dissent Rehnquist explicitly stated: “due derlying conclusion, that the Court must raise the bar
process is not violated in every case where an isolated for defendants to demonstrate faulty instructions, would
sentence implicates constitutional problems.”91 To ultimately take hold and be applied in mitigation instrucCriminal Law Brief
75
tion cases. As he suggested in his dissent, “it must at
least be likely” rather than a reasonable possibility that
instructions led jurors to misapply the law before the
Court should intervene.98
As Brennan noted, such a standard would leave
the Court an “impressionistic and intuitive” task to deign
what path jurors followed in cases such as Francis v.
Franklin when the instructions contained a contradiction.99 This is despite what Brennan called a settled
precedent that verdicts must be set aside when there is
a reasonable possibility that jurors based their verdict
on an unconstitutional understanding of law .100
In a Texas capital case, Franklin v. Lynaugh101
the sentencing jury was instructed to return a death sentence if they found two specific aggravating factors: that
the murder was deliberate and that the defendant represented a continuing threat.102 The instructions made no
mention of the concept of mitigation.103
The issue before the Court was whether the instructions afforded the defendant an adequate opportunity to have mitigating evidence weighed by the jury in
its sentencing deliberations.104 In a decision written by
Justice White, and joined by Chief Justice Rehnquist
and Justice Scalia, a plurality of the Court found the instructions adequate.105 Justice White noted that the
judge’s instructions told the jury to base their verdict
“on all the evidence.”106 Thus, even though mitigation
was never mentioned, that general instruction carried
with it the obligation to weigh mitigating evidence.
The entirety of the defense’s mitigation presentation was Franklin’s prison record, which revealed that
he was not a violent inmate.107 “We are thus quite sure
that the jury’s consideration of petitioner’s prison record
was not improperly limited,” White wrote, because the
jury was “free to weigh and evaluate” that record.108
In reality, though, the standard advanced by
White and the plurality was not based on any demonstrable indication that the jury did weigh the mitigating
evidence, but rather by their conclusion that weighing
such evidence was possible. White wrote, “[w]e do not
believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case.”109
Given the Texas instructions, Stevens’ dissent
questioned how a defendant, with a clearly established
right to present mitigating evidence reflecting upon any
factor relevant to his life, could possibly have that evidence be properly weighed when the jury entered deliberations with only two questions before them.110 “A
sentencing jury must be given the authority to reject im76
position of the death penalty on the basis of any evidence relevant to the defendant’s character or record or
the circumstances of the offense proffered by the defendant in support of a sentence less than death. That rule
does not merely require that the jury be allowed to hear
any such evidence the defendant desires to introduce, it
also requires that the jury be allowed to give ‘independent mitigating weight’ to the evidence.”111
Stevens argued that by not offering an instruction on the application of mitigation, the judge had, in
effect, told the jury to ignore such evidence. “The failure
to give such an instruction removed that evidence from
the sentencer’s consideration just as effectively as would
have an instruction informing the jury that petitioner’s
character was irrelevant to its sentencing decision.”112
In fact, in her concurring opinion, O’Connor admitted
that the implied legal relevance of mitigation seems limited only to direct responses to the aggravating factors.113
Ten years later the Virginia Court considered a
very similar case. In Buchanan v. Angelone, the judge
presented capital sentencing instructions to the jury
without mention of mitigation.114 Instead, the judge instructed the jury to weigh whether the crime was “outrageously or wantonly vile, horrible or inhuman.”115 If
they agreed it was, the jury would then deliberate on
whether a death sentence was appropriate. Again, the
judge instructed jurors to consider “all the evidence.”116
As in Franklin v. Lynaugh, the defense unsuccessfully sought a set of instructions explaining mitigation.117 Further the defense asked that jurors be
instructed that if they found the factor to mitigate against
the death penalty then they “shall consider that fact in
deciding whether to impose a sentence of death or life
imprisonment.”118
In a six to three decision, the Court again found
that lack of instructions on the concept of mitigation and
mitigating factors does not violate due process or cruel
and unusual punishment.119 Writing for the Court, Chief
Justice Rehnquist emphasized that while any death sentence deliberation must be a “broad inquiry into all relevant mitigating evidence,” there is no “particular way”
juries should consider such evidence.120 Adhering to the
Franklin v. Lynaugh plurality, Rehnquist here noted that
the jury was told to “base its decision on ‘all the evidence,’” thus affording “jurors an opportunity to consider mitigating evidence.”121
Rehnquist argued that the amount of mitigating
evidence presented to the jury indicates that the jury
gave weight to that evidence. That is, because the jury
heard two days of testimony on defendant’s background
Winter 2009
and mental problems, “it is not likely that the jury would
disregard this extensive testimony in making its decision, particularly given the instruction to consider ‘all
the evidence.’”122 Of course, Rehnquist came to the
same conclusion when the jury was presented with almost no mitigating evidence in Franklin v. Lynaugh.123
One fundamental fact here and in related cases
is that the Court’s certainty regarding juror understanding does not rely on direct evidence. That is, no one
bothered to ask the jurors if they understood the instructions to ensure that the mitigating evidence was properly
considered. No one bothered to test these instructions
to see if ordinary laypersons could understand them.
Meanwhile, in a concurring opinion, Scalia
agreed that juror instructions need not explain mitigation. He offered this conclusion not because the relevance of mitigation is obvious in its presentation, or
established inside the phrase “all the evidence,” but
rather because juries need not “be given discretion to
consider mitigating evidence.”124 Indeed, Scalia found
fault not only with mitigation, but also with the entire
bifurcated process; “drawing an arbitrary line in the sand
between the ‘eligibility and selection phases’ of the sentencing decision is, in [his] view, incoherent and ultimately doomed to failure.”125
In the dissent, as in Franklin v. Lynaugh, Breyer
argued that since the only question put to jurors involved
aggravating circumstances, jurors would reasonably
apply mitigating information only to the extent it directly helped them decide upon the aggravating evidence.
Breyer questioned how jurors were to
operationalize the mitigating evidence, noting that the
jury instructions at issue “tell the jury that evidence of
mitigating circumstances (concerning, say, the defendant’s childhood and his troubled relationships with the
victims) is not relevant to their sentencing decision.”126
Unless the jury was “made up of experienced
death penalty lawyers …parsing the instructions in a
highly complicated, technical way that they alone are
likely to understand” then “a natural reading of the language” would seem to foreclose the application of mitigation.127 Breyer made a rather simple suggestion for
changing the instructions: “mention of mitigating evidence anywhere in the instructions” would clear things
up.128
In directly competing interpretations, Rehnquist
and Breyer attempt to show how each other’s conclusion
is a “strained parsing” of the instruction.129 They debate,
among other matters, the relative weight of the instruction’s use of the words “if” and “or.” It is an amusing
Criminal Law Brief
colloquy between two jurists quibbling over language –
at least it would be if a person’s life did not hang in the
balance.130
What the exchange proves, however, is that one
judge with the aid of a team of law clerks does not interpret a jury instruction the same way as another – and
his own team of law clerks – does. If justices on the
Court cannot agree on an interpretation, how can laypersons with no legal training be presumed to do so?
California’s capital instructions in place at the
time Richard Boyde was tried did mention mitigation.131
The instructions featured eleven factors – lettered a
through k – the jury should consider before deciding
upon a sentence: the first eight factors essentially established possible aggravating circumstances, and the ninth
and tenth factors established two specific forms of mitigating circumstances, neither of which applied to
Boyde.132 The eleventh – factor k, as it was referred to
– instructed the jury to consider “any other circumstance
which extenuates the gravity of the crime even though
it is not a legal excuse for the crime.”133 After deciding
upon the factors, the jury was told to determine if the
aggravating circumstances outweighed the mitigating
circumstances, and if so, then “you shall impose a sentence of death.” 134
The issue before the Court was whether the
wording of the mitigation instruction narrowly focused
the jury’s attention on the crime, thus undermining the
value of the mitigation evidence regarding Boyde’s personal background and troubled childhood that was the
focus of his defense.135 Boyde also argued that the “shall
impose” language created a limit on juror discretion to
support a life sentence regardless of the aggravation/mitigation equation.136
In a five to four decision written by Rehnquist
and joined by Scalia the Court upheld the instructions.137
Rehnquist admitted the instructions could be considered
“ambiguous.”138 But as was the case in Buchanan v. Angelone, he argued that surely the presentation of mitigating evidence implied its relevance.139 Further, the
jury was free to consider any information and decide
that it somehow applied “to the crime.”140
Thus, Rehnquist concluded that the jury’s interpretation of the instructions as limiting their attention to
information directly relevant to the crime was “only a
possibility.”141 Instead, building on his dissent in Francis v. Franklin, Rehnquist argued that the Court needed
to be concerned about instructions only when there is a
“reasonable likelihood that the jury as a whole applied
instructions as the defendant asserted.”142 “Finality and
77
accuracy,” Rehnquist wrote, are better established by a where misconceptions go to die, but rather a forum
focus on the likely conclusions of the entire jury rather where preconceived notions and faulty instructions can
than considering “how a single hypothetical ‘reasonable wreak havoc with legal process.151
Indeed, Rehnquist cited no evidence that would
juror’ could or might have interpreted the instruction.”143
This evolving standard for juror confusion con- suggest “commonsense” understandings would prevail;
tinues to have tremendous implications. In previous more importantly, he fails to mention exactly what a
cases, including Francis v. Franklin, the Court dealt commonsense understanding of the instructions might
with instructions that “a reasonable juror” could rely look like. As is readily apparent from the instruction,
upon to impose an unconstitutional judgment.144 Here the language, syntax, and structure are not what layperthe Court applies a standard requiring that jury instruc- sons generally encounter, so it is hard to understand how
tions create a “likelihood that
they might have come to a
“commonsense” interpretation.
the jury” has applied an unconPeople
do
not
view
“the
145
stitutional standard.
In the dissent, Marshall
Beyond dismissing the
seriousness of a crime as lamented the lowering of the bar
significance of objections to infor instructions (or the raising of
dependent
upon
the
structions that are potentially
the bar for challenges to them).
misleading, the Court here
background and charac- Indeed, Marshall suggested the
moved to dismiss objections to
Court had created an ambiguous
ter
of
the
offender.
A
instructions which have misled
standard in reviewing ambigujurors (providing that some untypical juror would not, ous instructions, which can only
specified ratio of jurors were
result in “confusion.”152
for
example,
describe
a
Given that the only relenot misled). As Marshall noted
vant
mitigation
instruction “unin the dissent, “the majority reparticular murder as ‘a
ambiguously
refers
to
gards confidence” that individless serious crime’ beual jurors understood the
circumstances related to the
instructions “as unnecessary to
cause of the redeeming crime”153 Marshall questioned
how the majority could be conits affirmance of Boyde’s death
qualities of the murvinced that the jury gave weight
sentence.”146 Marshall argued
to mitigating evidence that was
that such a stance “reflects the
derer.” - Chief Justice
outside “the plain meaning of
Court’s growing and unjustified
Marshall
the factor’s language.”154 Peohostility to claims of constituple do not view “the seriousness
tional violation by capital deof a crime as dependent upon
fendants.”147
Apart from arguing that it is acceptable for some the background and character of the offender. A typical
jurors to act based on an unconstitutional standard, juror would not, for example, describe a particular murRehnquist essentially sent the Court down the very dif- der as ‘a less serious crime’ because of the redeeming
ficult path of determining precisely what percentage of qualities of the murderer.”155
For Marshall, “when we tolerate the possibility
a jury was misled by an instruction. How the court is to
148
Ironi- of error in capital proceedings and leave people in
determine this percentage is not spelled out.
cally, given he has created a standard based on guess- doubt,” we step toward the death penalty process the
work, Rehnquist then mocked the defense claim of juror Court had found “discriminatory” and “intolerable” in
confusion because it “amounts to no more than specu- Furman v. Georgia.156
Instead of the obvious course of action – conlation.”149
Part of the distinction Rehnquist made between fronting head-on the ambiguity of the instructions and
juror confusion and jury confusion was based on the conceding that a layperson could easily produce an unconclusion that the deliberation process allows juries to constitutional application of those instructions – Rehnrise above confusing instructions because the group will quist chose to instead speculate about whether it was
ultimately arrive at a “commonsense understanding of likely that the jury interpreted the instructions unconstithe instructions.”150 By contrast, academic research tutionally.157 This does not seem to be a jurisprudence
shows the deliberation process is by no means a place aimed at ensuring a meaningful right to a jury but,
78
Winter 2009
rather, a jurisprudence of protecting the legal system
from legitimate questions. In addition, as the dissent
noted, “[i]t is an essential corollary of our reasonabledoubt standard in criminal proceedings that a conviction, capital or otherwise, cannot stand if the jury’s
verdict could have rested on unconstitutional
grounds.”158
The fact that Rehnquist, in establishing the “reasonable likelihood” standard, is more worried about protecting the system against attack rather than supporting
a meaningful right to a jury is confirmed when he wrote
about two “strong policies” of the Court: one in favor
of “accurate determination of the appropriate sentence
in a capital case” and the other, which he wrote is
“equally strong”, “against retrials years after the first
trial where the claimed error amounts to no more than
speculation.”159 Rehnquist’s commentary on the Court’s
two “equally strong” policies begs the question: when
the two policies conflict, which one wins? Rehnquist
found getting it over with more persuasive than ensuring
that the capital defendant receives a meaningful right to
a jury trial.
Despite the Court’s support for its instructions,
state legislators in California ultimately rewrote the mitigation language in their statute. Beyond the original
language of factor k referring to “any other circumstance
which extenuates the gravity of the crime even though
it is not a legal excuse for the crime,” the new instructions included the requirement that jurors note “any
sympathetic or other aspect of the defendant’s character
or record . . . whether or not related to the offense for
which he is on trial.”160
In many respects a perfect culmination of this
line of controversy occurred in Weeks v. Angelone.161
Again the issue centered on how to consider mitigation.
On this occasion, however, there was no need to speculate on whether “a reasonable juror” was confused, or if
there was a “reasonable likelihood” the jury was confused, because the jury announced that it was confused.162
The defendant, Lonnie Weeks in the case confessed the day after the crime to killing a police officer.163 Arrested the day after the crime, Lonnie Weeks
quickly confessed and expressed remorse.164 Weeks articulated the desire to commit suicide because of his actions.165
The judge informed the jury that if they found
aggravation “then you may fix the punishment at death,
or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment
Criminal Law Brief
at life imprisonment.”166
After four hours of deliberation, the jury asked
whether their deliberation was complete if it did find aggravation, or if it then still had to weigh whether a death
sentence was appropriate:
If we believe that Lonnie Weeks, Jr. is
guilty of at least 1 of the [aggravating
factors], then is it our duty as a jury to
issue the death penalty? Or must we decide . . . whether or not to issue the death
penalty, or one of the life sentences?
What is the rule? Please clarify?167
The defense asked the judge to instruct the jury
that even if they found aggravation beyond a reasonable
doubt they could still impose a life sentence. The judge
declined, instead repeating the original instruction without clarification. The judge noted, “I don’t believe I can
answer the question any clearer than the instruction.”168
The jury deliberated for two additional hours before returning a death sentence.
In another five to four decision written by Rehnquist, joined by Scalia and Thomas, the Court found the
instruction “constitutionally sufficient.”169 Again, the
Court admitted the jury might have fundamentally misunderstood its charge stating: “there exists a slight possibility that the jury considered itself precluded from
considering mitigating evidence.”170 However, Rehnquist rebutted that fear because “a jury is presumed to
follow its instructions” and “to understand a judge’s answer to its question.”171
Thus, the Court took the position that the jury
must have understood the instruction because the jury
openly asked for help upon receiving nothing more than
the original instruction.
Moreover, Rehnquist advanced what he called
“empirical” evidence of juror understanding; since the
jurors spent more than two hours deliberating after the
judge’s answer, they must have understood its meaning.172
Presumably, if the jury had returned almost immediately after the instruction Rehnquist would have
seen that as evidence that the Jury had clearly understood the instruction because they were able to act so
swiftly. This is no mere speculation, as ten minutes of
deliberation following a jury question in Francis v.
Franklin was considered to be evidence of juror understanding in Rehnquist’s dissent in that case.173 Here,
staying out two additional hours was evidence of under79
standing. It is interesting to consider what length of time
Rehnquist would possibly have seen as an indication of
misunderstanding. Indeed, it seems more likely that
Rehnquist has constructed an unfalsifiable standard
where brevity of deliberations suggests easily understood standards and prolonged deliberations establish
seriously undertaken discussion of evidence, but no
length of deliberations implies misunderstanding of instructions.
The majority further took as evidence of understanding the fact that the jury “did not inform the court
that after reading the relevant paragraph of instruction,
it still did not understand its role.”174 Indeed, Rehnquist
concluded, “This particular jury demonstrated that it
was not too shy to ask questions, suggesting that it
would have asked another if it felt the judge’s response
unsatisfactory.”175 In other words, after the jury directly
asked for clarification it did not receive, the Court takes
the jury’s lack of inclination to ask the exact same question again as evidence of understanding, though repeating the question would logically have resulted in the
same non-answer.176
Stevens asked in his dissent, “if the jurors found
it necessary to ask the judge what that paragraph meant
in the first place, why should we presume that they
would find it any less ambiguous just because the judge
told them to read it again?”177 Moreover, he questioned
attaching any significance to the jury’s failure to repeat
the question: “It seems to me far more likely that the
reason they did not ask the same question a second time
is that the jury believed that it would be disrespectful to
repeat a simple, unambiguous question that the judge
had already refused to answer directly.”178
Similarly intriguing is the notion that the jury’s
question ultimately lends confidence to Rehnquist’s
conclusion that the jury understood its instructions. If
the jury had never asked a question, it would have been
presumed to understand its instructions. If, instead, the
jury directly questioned an instruction fundamental to
their duty, expressing complete uncertainty about the
standard they were to apply and including the words,
“What is the rule? Please clarify?” upon which point
they received clarifying information, then the jury is presumed to understand its instructions. Even if, as in this
case, the jury posed that same question and received no
new information or clarification of any kind, the jury is
presumed to understand its instructions. Again, Rehnquist has advanced an unfalsifiable standard: not asking
a question is evidence of understanding, and asking a
question is also evidence of understanding.179
80
Rehnquist’s powers of jury mind reading are not
limited to legal interpretation. The dissent noted that a
majority of jurors were in tears when the death sentence
was read, an unusual occurrence according to state court
officials.180 This suggests, suggesting to Stevens that
some may have felt that the sentence was inappropriate.
Rehnquist countered that the unusual tears reflected exhaustion and a belief that the defendant “deserved the
death sentence.”181 Rehnquist does not elaborate on why
what are presumably elements of nearly every jury death
sentence should produce tears only in this rare instance.
In the dissent, Stevens made a basic case for
“clarity – clarity in the judge’s instructions when there
is a reasonable likelihood that the jury may misunderstand the governing rule of law.”182
Even with the high standard for demonstrating
juror confusion, Stevens argued that “this case establishes, not just a ‘reasonable likelihood’ of jury confusion, but a virtual certainty that the jury did not realize
that there were two distinct legal bases for concluding
that a death sentence was not ‘justified.’”183 That is, the
jury could find aggravation had not been proved, or if
aggravation had been proved, it could find the death
penalty was not warranted after weighing mitigation. In
contrast to Rehnquist’s position that the jury’s question
demonstrated understanding, “[t]he fact that the jurors
asked this question about that instruction demonstrates
beyond peradventure that the instruction had confused
them. There would have been no reason to ask the question if they had understood the instruction to authorize
a life sentence even though they found that an aggravator had been proved.”184
Given that the judge provided the confused jury
no new information, Stevens asked where the majority
found confidence that the jury was “magically satisfied
by the repetition of the instruction that had not heretofore answered its question.”185 Stevens posited that “a
non-lawyer” would have concluded death was the only
available sentence if aggravation had been proved.
There was simply “no reason to believe that the jury understood the judge’s answer to its question” and therefore “overwhelming grounds for reversal.”186
Ultimately, Stevens, like Breyer in the Buchanan dissent, called for the “easy” step of giving the jury a
“straightforward categorical answer to their simple
question.”187
Would Weeks’ have received a death sentence if
the jury had understood its duty to determine both aggravation and, separately, whether the sentence was warranted? A team of academics took up the question.
Winter 2009
Using jury eligible subjects, researchers created a series When jurors are asked to decide whether to impose a
of simulated sentencing deliberations.188 In each, sub- death sentence, the alternative typically available to
jects were given information on the case and the instruc- them is to impose a life sentence. What “life sentence”
tions provided by the judge.189 But three different means provokes wildly different interpretations from juconditions were created with regard to the question on rors – and those beliefs are crucial to their sentencing
whether they needed to deliberate past finding aggrava- preferences. The belief that a “life sentence” is for a petion.190 The first group was never told of the jury’s ques- riod of less than life dramatically increases the likelition in Weeks and asked to deliberate based on the hood that a person will favor imposing a death
original instructions.191 The second group was told of sentence.199 Indeed, interviews with former capital case
the jury’s question, and, as occurred in the case, was pro- jurors confirmed that the less time they understood a life
vided a second reading of the original instructions.192 sentence to require the more likely they were to support
The third group was told of the jury’s question and pro- a death verdict.200
vided a plain language answer that they must deliberate
As was the case with the meaning and import of
on the question of whether to
mitigation, the definition of a
impose death even if they find
sentence was discussed in the
At
least
half
of
the
subjects
193
aggravation.
case in which the Court
in the first two groups
The results were quite
brought the death penalty
clear. At least half of the subback into legal use. In Gregg
thought
that
finding
aggrajects in the first two groups
v. Georgia, the Court dethought that finding aggravavation ended the need for clared that the Eighth
tion ended the need for deliberAmendment demands that judeliberation
and
established
ation and established the
rors are given “accurate senEven
penalty at death.194
the penalty at death. Even tencing information” because
among the third group, given a
it is “an indispensable prereqamong the third group,
plain language instruction that
uisite to a reasoned determithis was not true, one-fourth of
given a plain language in- nation of whether a defendant
the subjects held the same beshall live or die.”201
struction
that
this
was
not
195
More significantly,
In the four cases highlief.
among those who correctly untrue, one-fourth of the sub- lighted below (California v.
derstood the obligation, a maRamos202; Simmons v. South
jects held the same belief. Carolina203; Shafer v. South
jority favored a life sentence.196
Regardless of the realCarolina204; Kelly v. South
205
ity of studies like the one described above, Franklin v. Carolina ), the issue turned on juror understanding of
Lynaugh , Buchanan v. Angelone, Boyde v. California, the sentences they might impose. In the latter three
Weeks v. Angelone, and Francis v. Franklin establish a cases, Scalia and Thomas dissented and made clear that
successful effort on the part of Rehnquist, joined by they found no need to make plain to the jurors the meanScalia and Thomas, to establish two pillars that now un- ing of the sentence they were considering; Rehnquist
dergird the Court’s approach to jury instructions in cap- joined their position in the final case. In the first case,
ital cases. First, whether the instructions are clear or in which only Rehnquist participated, he joined a maunclear, consistent or contradictory, explicit or unmen- jority advancing the notion that the state may assert life
tioned, jurors can be expected to understand their duties. sentences are something less than life sentences.
In typical criminal trials, jurors must determine
Second, even if the Court identifies “one or two sentences”197 of unconstitutional instructions, or find evi- guilt or innocence. The length or nature of the sentence
dence that a “reasonable juror”198 was misled, the a defendant might face if found guilty is legally irreleinstruction is still tolerable.
vant to jury proceedings. Were the jurors to inquire
about punishment, they would be told that punishment
is not for their consideration.
defining a sentence
While capital jurors are apt to be confused by inIn capital trials, jurors determine not only guilt
structions regarding the sentencing decision, they are or innocence, but they also impose a sentence. While
similarly flummoxed by the sentences themselves. telling jurors not to concern themselves with punishCriminal Law Brief
81
ment may be a legally sound practice in other cases, in
many jurisdictions it is also the default practice in capital cases in many jurisdictions. That is, even though
they are explicitly deciding upon a sentence, in effect
jurors are commonly told not to concern themselves
with the actual meaning of the sentence.206
As such, when they ask if a “life sentence”
means a term of life, or if it is for some shorter period,
or if they ask whether parole is possible, jurors’ questions often go unanswered. This despite the fact that
confusion about these terms is widespread, and in some
jurisdictions the meaning of “life sentence” has changed
dramatically in recent years.
In Simmons v. South Carolina, among the reasons the state argued Jonathan Simmons should get the
death penalty was that he posed a future threat. Executing Simmons, the prosecutor said, “[would] be an act of
self-defense” for society.207 Jurors deliberating on Simmons’ sentence were asked to choose between death and
a sentence of life imprisonment, and in doing so, the jurors asked if the defendant was eligible for parole.208
The judge not only refused to answer directly, but he
had previously barred the defense from mentioning Simmons parole ineligibility during the proceedings.209
Blackmun wrote for the Court’s plurality that
misunderstanding a “life sentence” created “a false
dilemma” between a death sentence and a sentence to a
“limited period of incarceration.”210 Given that the prosecution argued that the defendant would be a danger to
society, the defendant had a due process right to inform
the jury that a life sentence would result in his imprisonment for the rest of his life because “in assessing future dangerousness, the actual duration of the
defendant’s prison sentence is indisputably relevant.”211
It seems well established that the meaning of a
“life sentence” was not commonly understood in the
state. The defense presented contemporary polling data
showing only seven percent of jury eligible South Carolinians thought a life sentence carried with it a term of
life.212 Nearly half thought a life sentence was twenty
years or less, nearly three in four thought it was thirty
years or less.213
Thus, it was not entirely surprising when, after
90 minutes of deliberation, the jury asked, “Does the imposition of a life sentence carry with it the possibility of
parole?”214
The judge replied: “You are instructed not to
consider parole or parole eligibility in reaching your verdict. Do not consider parole or parole eligibility. That
is not a proper issue for your consideration. The terms
82
life imprisonment and death sentence are to be understood in their plain and ordinary meaning.”215
Given that ninety-three percent of state residents
did not know what the plain and ordinary meaning of
“life imprisonment” was, the response was less than illuminating.216 As Justice Blackmun put it, the jury “was
denied a straight answer about petitioner’s parole eligibility even when it was requested.”217 Indeed, Blackmun concluded that the judge’s response not only did
not establish the truth about parole, but supported a misconception. “This instruction actually suggested that
parole was available, but that the jury, for some unstated
reason, should be blind to this fact. Undoubtedly, the
instruction was confusing and frustrating to the jury.”218
Twenty- five minutes after hearing the judge’s
response, the jury sentenced Simmons to death.219
Justice Scalia, joined by Justice Thomas, offered
a dissent. Scalia questioned the relevance of the parole
issue and the future dangerousness argument. “I am sure
it was the sheer depravity of those crimes, rather than
any specific fear for the future, which induced the South
Carolina jury to conclude that the death penalty was justice.”220 It would be “quite farfetched” to think parole
was a significant matter for the jury.221 If that were true,
and parole was very irrelevant, one must wonder why
the prosecution vociferously objected to the jury being
told parole was not available.
Moreover, why would the jury ask about parole
if its deliberations were not in any way affected by questions related to when the defendant might gain freedom
and what he might do under those conditions? Further,
if the future dangerousness of the defendant was irrelevant to the jury, why did the prosecution bother making
the argument, and how is Scalia in a better position to
determine the value of the argument to the jury than the
prosecutor who handled the case?
Nevertheless, Scalia asserted that the prosecutor’s claim that executing Simmons will be “an act of
self defense” was irrelevant to the jurors. “This reference to ‘self-defense’ obviously alluded neither to defense of the jurors’ own persons, nor specifically to
defense of persons outside the prison walls, but to defense of all members of society against this individual,
wherever he or they might be.”222 How a phrase could
allude to “all members of society” without alluding to
the jurors and other “persons outside prison walls” is
something of a semantic mystery.
Beyond making the case that the parole issue
was irrelevant, Scalia asserted that there was also a matter of fundamental fairness here. “Preventing the deWinter 2009
fense from introducing evidence regarding parolability
is only half of the rule that prevents the prosecution from
introducing it as well.”223
Just to be clear, Scalia has argued that not allowing the defense to define the true meaning of a life sentence is fair because the prosecution, were they to switch
sides during the trial in an attempt to aid the defense,
would also be prohibited from defining the life sentence.
This is the companion argument to the assertion that
Rehnquist made in Francis v. Franklin that both the defense and prosecution were free to demonstrate the defendant lacked intent to kill. Apparently prosecutors
switching sides in the middle of a trial must be fairly
common, although it a phenomenon known only to the
Court’s most conservative members. 224
Ultimately, Scalia’s dissent suggested his objection was less to the Court’s conclusion than to its larger
implications for executions. The Court’s standard is a
“reasonable as a matter of policy,” he wrote, but sadly
represents “another front in the guerilla war to make this
unquestionably constitutional sentence a practical impossibility.”225
Seven years after Simmons the Court dealt with
nearly the same question in another South Carolina capital case. In Shafer v. South Carolina (2001)226 the judge
again provided sentencing instructions without defining
life imprisonment. Despite the prosecution raising the
specter of future dangerousness, the defense was barred
from explaining to the jury that parole was not a possibility. The judge also rejected the defense’s request that
the language of the applicable state statute be read to the
jury. [The statute explains that “‘life imprisonment’
means until death of the offender” and that there is no
possibility of parole, furlough, or any type or fashion of
release].
Again, confusion on the meaning of a life sentence ensued. About three and a half hours into deliberations the jury asked the judge: “Is there any remote
chance for someone convicted of murder to become eligible for parole?”227 The judge replied: “Parole eligibility or ineligibility is not for your consideration.”228
Eighty minutes later the jury returned with a death sentence. The defense asked that the jury be polled regarding their understanding of a life sentence, but the judge
refused.
Writing for a seven to two majority, Justice
Ginsburg concluded that the jury lacked “any clear understanding” of the life sentence they were meant to
weigh against a death sentence.229
In a rather astonishing dissent, Thomas, joined
Criminal Law Brief
by Scalia, asserted there was no evidence of juror confusion. “I believe that the court’s instructions and the
arguments made by counsel in Shafer’s case were sufficient to inform the jury of what ‘life imprisonment’
meant for Shafer”230 and “left no room for speculation
by the jury”231 on meaning of life sentence.
What, then, did the jury mean to indicate when
it asked about the potential for the defendant to be released? “I can only infer that the jury’s questions regarding parole referred not to Shafer’s parole eligibility
in the event the jury sentenced Shafer to life, but rather
to his parole eligibility in the event it did not sentence
him at all.”232 In other words, Thomas takes the jury’s
direct question regarding their direct task, and concludes
they meant to inquire not about anything they were
doing but rather wished to clarify a point of law that they
had not raised and which had no bearing on them.
As was the case in Weeks v. Angelone, direct jury
questions on topics which are widely misunderstood are
taken here by Scalia and Thomas to be not so much indicators of confusion, but either indicators of understanding or interest in arcane legal points unrelated to
the jurors’ task.
The South Carolina legal system would produce
yet another iteration of this basic controversy one year
later. In Simmons, and again in Shafer, the Court had
clearly stated a defendant’s right to establish before the
jury that parole was unavailable in response to prosecution efforts to establish future dangerousness. In Kelly233
the state claimed, (and the trial judge agreed,) it had
made no effort to establish future dangerousness and
therefore no mention of parole ineligibility was warranted.
The Court, in a five to four decision, took note
of the prosecutor’s repeated characterizations of the defendant William Kelly. The prosecutor called Kelly
“Bloody Billy,”234 the “Butcher of Batesburg,”235 and
noted he was “more frightening than a serial killer.”236
The prosecutor warned “murderers will be murderers
and he is there is a cold-blooded one right over there.”237
Souter, writing for the Court, highlighted several such examples as well as the overall thrust of the
prosecutor’s presentation and concluded: “the evidence and argument . . . …are flatly at odds with the
view that ‘future dangerousness was not an issue in
this case.’”238
Justice Rehnquist in his dissent disputed the notion that future dangerousness came up in the case.
“The prosecutor did not argue future dangerousness . . .
…in any meaningful sense of that term.”239 Curiously,
83
Rehnquist admitted that “the prosecutor’s arguments cannot argue that the Constitution prohibits the State
about the details of the murder, as well as the violent from accurately characterizing its sentencing
episodes in prison, demonstrated petitioner’s evil char- choices.”245
The Court apparently had no concern that the
acter.”240 Thus, as Rehnquist would have it, the prosecutor sought and successfully established the sentence of death – which carries with it the precise
defendant’s credentials for evil status, but somehow ap- equivalent legal possibility of commutation – is in any
parently implied his evilness had expired and carried no way misleading because it too can result ultimately in
implications for the future.
the defendant being set free. As Marshall argued in the
Thomas, joined by Scalia, offered a separate dis- dissent, “the instruction thus erroneously suggests to the
sent, not to dispute whether future dangerousness was jury that a death sentence will assure the defendant’s
raised in the case, but to reaffirm his position that the permanent removal from society whereas the alternative
defendant should have no right to reveal parole infor- sentence will not.”246
Stevens argued in the dissent that the Court
mation regardless of prosecution arguments.
While Simmons, Shafer, and Kelly fought over should show no tolerance for biased jury instructions.
the state not providing information about life sentences, “No matter how trivial the impact of the instruction may
be, it is fundamentally wrong for the
California v. Ramos (1983)241
centered on the state giving addiThe Court apparently presiding judge at the trial - who
tional information about life senshould personify the evenhanded adhad
no
concern
that
tences. In short, California law
ministration of justice” to provide
required the judge to inform the the sentence of death – the jury one-sided information.247
sentencing jury in a capital case
As in Ramos, in Lowenfield
which
carries
with
it
that if they sentenced the defenv. Phelps (1988)248 leeway that was
dant to life imprisonment the
the precise equivalent denied to the defense was generously
state’s governor could commute
provided to the state. In Lowenfield,
legal possibility of
a capital jury spent thirteen hours in
the sentence to a shorter term.
Ramos’ attorney argued
commutation – is in sentencing deliberation and reported
to the judge that they had reached a
such an instruction invited the
any way misleading deadlock. At one point, the jury rejury to speculate, and was biased
expeagainst the defendant because
because it too can re- ported to the judge that it was
riencing “much distress.”249 The
there was no mention of the fact
sult ultimately in the judge replied: “I order you to go
that the governor had the same
power to commute a death sendefendant being set back to the jury room and to250deliberate and arrive at a verdict.”
tence.
free.
Later, when the jury again reIn a five to four decision,
ported difficulty, the judge twice
the Court found the instruction
permissible. O’Connor wrote for a majority which in- polled the jurors to ask if further deliberations would be
cluded Rehnquist. Commutation “information is rele- useful, – and reminded the jurors for what would be the
vant and factually accurate,” O’Connor argued.242 fourth time since the conclusion of the case that if they
“Informing the jury of the Governor’s power to com- failed to reach a verdict the defendant would be senmute a sentence of life without possibility of parole is tenced to life imprisonment. The judge’s polls, which
merely an accurate statement of a potential sentencing required the jurors to sign their name to their vote, in efalternative, and corrects the misconception conveyed by fect forced the jurors to take a position on the verdict
the phrase ‘life imprisonment without possibility of pa- since further deliberations were necessary for a death
role.’”243
sentence. After the first poll found eight in favor of conIndeed, the Court went on to assert that without tinuing deliberations, the judge repeated the process and
this information “life imprisonment without possibility found eleven in favor of continuing deliberations. Just
of parole” would create a “misleading impression” that thirty minutes after the polls the jury returned a death
release was impossible.244 The commutation instruction sentence. Despite the seemingly tilted nature of the
“dispels that possible misunderstanding” leaving little judge’s instructions, his command to continue deliberroom for the defense to object as “surely, the respondent ating, and his repeated admonitions on the consequences
84
Winter 2009
of deadlock (“Ladies and Gentlemen, as I instructed you
earlier if the jury is unable to unanimously agree on a
recommendation the Court shall impose the sentence of
Life Imprisonment”),251 Rehnquist wrote for the Court
that while the judge’s instruction “suggests the possibility of coercion” the instruction was “not ‘coercive’ in
such a way” as to deny the defendant’s rights.252
Ultimately, the conservative judges proved
themselves willing to tolerate sentencing definition rules
which tend to establish the defendant as a threat.
Whether that is through the withholding of information
pertaining to parole ineligibility, the one-sided presentation regarding commutation possibility, or the browbeating of a trial judge to push the jury out of its
deadlock, the jury instruction rules that the conservative
judges support consistently provide freedom for the
prosecution and limitation on the defense.
Even as the current Court majority has provided
for the defendant’s right to define parole ineligibility, it
is a narrow right. Only when the prosecution seeks to
establish future dangerousness, and only when life without possibility of parole is the sole available alternative
sentence does a defendant have a right to define the
meaning of life sentence. Even in that limited instance,
however, it is clear that the right is far from firmly established. Kelly produced only five votes for the defendant’s right to define life sentence, with two dissenters
(Thomas and Scalia) asserting there is no such right in
any circumstance.
Creating understandable instructions
given “instructions on the meaning of the legal terms
used”255 and when questions arise they should be answered directly. When the Simmons jury asked “Does
the imposition of a life sentence carry with it the possibility of parole?” Souter wrote, “The answer here was
easy, and controlled by state statute. The judge should
have said no.”256 Concomitantly, in his dissent in Weeks,
Justice Stevens issued a call for “clarity”257 in jury instructions. Should the jury fail to understand and ask a
question, a “straightforward categorical answer” should
be provided.258 At the very least, Justice Breyer suggested it would be helpful if instructions on mitigation
included the “mention of mitigating evidence anywhere
in the instructions.”259
In their simulation using members of the jury
pool, one study found that rewriting juror instructions
in plain language improved juror comprehension scores
by twenty percent.260 Among the areas jurors showed the
most improvement on was the understanding of mitigation, including what counts as mitigation, what is the
standard for demonstrating mitigation, and whether
every juror must agree to apply the same mitigating
piece of evidence to find mitigation.261 Other researchers have also found significantly higher comprehension with plain language instructions.262
Another massive jury simulation tested not only
plain language instructions, but also a flowchart instruction, and instructions with specific clarifications on
common misconceptions.263 These various instruction
forms were tested against traditional instructions.264 The
plain language instructions had the most dramatic effect,
in some areas doubling comprehension rates on such
matters as mitigation.265 Other forms of instruction also
produced gains over the traditional instructions.266
While scholars have established both the depth
of misunderstanding in response to traditional juror instructions, as well as the promise of user-friendly instructions, the Court remains largely aloof. If the Court
is to give true effect to its expanding right to a jury,
though, it must turn away from its line of juror instruction cases in which it has established an expanding jurisprudence of permissible confusion.
Rehnquist wrote in Buchanan v. Angelone that
the jury could not have been confused because “the instruction presents a simple decisional tree.”253 He meant
that metaphorically. The practical meaning of the instructions in Buchanan would be difficult for any nonlawyer to explain. Indeed, there is no shortage of
evidence on the point that jurors have trouble understanding typical capital sentencing instructions.
Ironically, among the suggestions researchers
have made to improve comprehension of instructions is
to provide jurors with decision trees or flowcharts.254
That is to say, actual decision trees in which each plainly
JuRoR exClusion
worded question points the jurors to the next issue they
must decide, not metaphorical decision trees that exist
Belief exclusion
only in the mind of a Supreme Court justice.
Plain and direct language would also aid jurors
in carrying out their task. As Justice Souter argued in
Given the unique obligations of a capital case
his concurring opinion in Simmons, jurors should be juror, the Court has recognized the significant effect perCriminal Law Brief
85
sonal values might have in inhibiting jurors from following their instructions and applying the law. In Witherspoon v. Illinois (1968) and subsequent cases, the
Court concluded that a juror could be excluded from
participating in a capital case if his views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and
oath.”267
Such exclusion applies to both those who would
never impose the death penalty as well as those who
would always impose the death sentence in a capital
case. “[A] State may not entrust the determination of
whether a man should live or die to a tribunal organized
to return a verdict of death.”268
To give effect to this requirement, prospective
jurors are questioned during voir dire to determine their
death penalty views and if those views would impair
their ability to reach a verdict based on the law and the
evidence at hand. In effect, the so-called “death qualification” process allows the prosecution to challenge for
cause and thereby remove prospective jurors who state,
for example, that they would never vote to impose the
death penalty, and the defense to challenge and remove
the comparatively rare individual who states they would
always vote to impose the death penalty.
While the concept of death qualification is relatively straightforward, the line between who is acceptable and who is not acceptable is not always clear, nor
are the parameters of the qualification process. Moreover, academic research makes it quite clear that death
qualification dramatically affects the makeup of juries
beyond its stated purpose.
Not surprisingly, those who can be excluded
based on their opposition to the death penalty are more
likely to pay attention to mitigating evidence269 and less
likely to accept the cost of convicting the innocent over
freeing the guilty.270 Notably, they are also less likely
to hold racist beliefs,271 more likely to remember evidence, accurately understand the law, and thoroughly
weigh the evidence.272
Even more to the point, contrary to the premise
of death qualification, evidence suggests that many excludables (those who may be excluded) who oppose the
death penalty would actually be willing to impose a
death sentence. That is, while excludables may report
an abstract unwillingness to impose the death penalty
sufficient to have them removed for cause from the jury,
when presented with evidence on specific cases, the majority report favoring the death penalty’s application for
particularly heinous murders.273
86
Relative to excludables, includables (those who
may be included) meanwhile are conviction prone.
Meta-analyses of studies on death penalty includables
show they are up to forty percent more likely to favor
conviction in individual cases,274 while other studies reveal the difference is particularly great when the evidence is weakest.275
Among the factors in includables’ conviction
tendencies is their generally held belief that the prosecution is more trustworthy than the defense. One jury
simulation showed participants conflicting evidence variously supporting the prosecution or the defense’s position.276 Includables were far more likely to accept the
prosecution’s perspective; in contrast to excludables, includables were more likely to fear erroneous acquittals
than erroneous convictions.277
Meanwhile, contrary to the premise of their inclusion, more than one fourth of includables express the
belief that the death penalty should be imposed after
every capital case conviction.278
In each of the five death qualification cases discussed below Rehnquist supported an expansive prosecutorial right to cleanse the jury of death penalty
skeptics and a narrow defense right to purge the jury of
death penalty enthusiasts. In the three cases Scalia heard
and the one Thomas participated in, they joined Rehnquist’s position. Overall, the thrust of the conservatives’
position is what they consider to be the state’s right to
an impartial jury and generally cast a skeptical eye on
defendant’s countervailing claims.
In Adams v. Texas (1980)279 the judge asked jurors if they held any beliefs regarding the death penalty,
which would “affect their deliberations on any issue of
fact.”280 Jurors who said yes were excused.
The state argued this was a fair way to determine
death penalty excludables. The defense countered that
the state had re-written a standard which allowed people
to be excluded only if their views “would prevent or
substantially impair” them from carrying out their duties
to a new lower standard rejecting jurors who might be
affected in any way by the weight of a death proceeding.281
In an eight to one opinion (Rehnquist dissenting), the Court held that Texas law had created an unreasonable standard which had the effect of excluding
jurors “whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly
that they might or might not be affected.”282
“Nervousness” and “emotional involvement”
were inherent in a death proceeding, the Court argued,
Winter 2009
thus the “inability to deny…any effect whatsoever” is
Some of the studies referred to in this chapter,
in no way “equivalent to an unwillingness or an inability [for example Cowan, Thompson and Ellsworth (1984)]
on the part of the jurors to follow the court’s instructions were before the Court then, but were deemed of no value
and obey their oaths.”283
because they were based on surveys and simulations,
In short, the Court reaffirmed that jurors may not not the deliberations of actual jurors hearing applicable
be excluded “on any broader basis than inability to fol- cases. [Of course, as Marshall pointed out in dissent,
low the law or abide by their oaths.”284
studying the deliberations of actual jurors in actual cases
In the dissent, Rehnquist said he could “see no is legally impossible, and not something any court
reason why Texas should not be entitled to require each would accommodate. Leaving surveys and simulations
juror to swear” that he or she will be unaffected by the “the only available means of proving their case.”]293
Rehnquist also dismissed McCree’s claim that
possibility of a death sentence.285 Further, foreshadowing an argument Scalia would offer in Holland v. Illi- he was denied a jury consisting of a “fair-cross-section”
nois, Rehnquist asserted, that “society, as much as the of society. 294 Death penalty excludables are not “a ‘disdefendant, has a right to an impartial jury.”286
tinctive’ group in the community[,]” thus McCree has
In Lockhart v. McCree (1986)287 the entire no right that they be included at any stage of the jury
process of death qualification was challenged as an im- process.295
pediment to an impartial jury reflecting a cross section
Oddly, Rehnquist made much of the fact that
of society. Before McCree’s capMcCree’s jury, which had been
ital murder trial, the judge resubject to death qualification,
In any given case,
moved for cause jurors who said
produced a panel which could
they could not impose death chance could produce an have been the product of the
penalty. The jury convicted Mc“luck of the draw.”296 Rehnquist
all
male
jury
or
an
all
Cree of murder but later senelaborated, “it is hard for us to
tenced him to life imprisonment.
white jury. Surely, the understand the logic of the arguMcCree’s attorneys argued that
ment that a given jury is unconfact
that
“mere
chance”
the death qualification process
stitutionally partial when it
had created a conviction prone
results from a state-ordained
could produce a panel
jury.
process, yet impartial when exwould not justify any
In a six to three opinion
actly the same jury results from
written by Rehnquist, the Court
mechanism of discrimi- mere chance.”297
In any given case, chance
found that death qualification did
nation
the
state
wished
could produce an all male jury or
not violate the defendant’s rights
an all white jury. Surely, the fact
because the Constitution “does
to create.
not require that petit juries actuthat “mere chance” could produce a panel would not justify
ally chosen reflect the composition of the community at large.”288 Moreover, death any mechanism of discrimination the state wished to
qualification does not “violate the constitutional right to create.
an impartial jury . . . because all individual jurors are to
Rehnquist added that if one were to follow Mcsome extent predisposed towards one result or an- Cree’s “illogical and hopelessly impractical” standard,
other.”289
that is “if it were true that the Constitution required a
Lower courts had sided with McCree, finding certain mix of individual viewpoints on the jury, then
that “social science evidence” showed “that ‘death qual- trial judges would be required to undertake the
ification’ produced juries that ‘were more prone to con- Sisyphean task of ‘balancing’ juries, making sure that
vict’ capital defendants than ‘non-death qualified’ each contains the proper number of Democrats and Rejuries.”290
publicans, young persons and old persons, white-collar
Rehnquist dismissed the studies because of what executives and blue-collar laborers, and so on.”298
Again, Rehnquist mixed the concepts of excluhe said were “several serious flaws in the evidence.”291
Quoting language used when the Court weighed the sion and random chance. It was not random chance that
same issue two decades earlier, Rehnquist labeled the created the panel McCree objected to; it was the practice
research “too tentative and fragmentary.”292
of death qualification. As there is no political party
Criminal Law Brief
87
qualification, age qualification, or occupation qualification for jury service, none of these factors is remotely
congruent.
While Rehnquist dismissed the social science research presented in the case, in the dissent Marshall referred to it as “overwhelming evidence that
death-qualified juries are substantially more likely to
convict.”299 Rather than questioning varying research
practices, Marshall took confidence from “the essential
unanimity of the results obtained by researchers using
diverse subjects and varied methodologies”300
Marshall noted that the death qualification
process has a disparate effect on groups more likely to
hold anti-death penalty views, thus excluding more
women and African Americans from jury service.
Marshall suggested that capital defendants suffer
a double burden. First, unlike defendants for other
crimes, capital defendants are burdened with a jury
which has been systematically and legally structured to
increase the likelihood of conviction. Second,
I cannot help thinking that respondent
here would have stood a far better
chance of prevailing on his constitutional
claims had he not been challenging a
procedure peculiar to the administration
of the death penalty. For in no other context would a majority of this Court refuse
to find any constitutional violation in a
state practice that systematically operates to render juries more likely to convict, and to convict on the more serious
charges.301
Thus, the absurd possibility Marshall implied: it may be
easier to convict someone of capital murder than of a
lesser crime.
In Gray v. Mississippi (1987)302 the judge excluded a legally qualified juror for cause at the prosecution’s request. In effect, the judge excluded the juror to
compensate the prosecutor for previous decisions the
judge made to deny the prosecutor’s earlier challenges.
This case then hinged on whether the disqualification of a qualified juror was a sufficient error to require the case be overturned, or whether the decision
should be considered “harmless.”303
In a five to four decision written by Blackmun,
the Court employed a standard based on “whether the
composition of the jury panel as a whole could possibly
have been affected by the trial court’s error” reasoning
88
that “the nature of the selection process defies any attempt to establish that an erroneous Witherspoon exclusion is harmless.”304
In a group voir dire, jurors were asked questions
to establish whether they were death qualified. Apparently realizing that if they said they would not impose
the death penalty they would be excused, an otherwise
unprecedented number of prospective jurors announced
their opposition to the death penalty. The judge grew
suspicious that they were misleading him to dodge service on the jury, at one point saying, “Now I don’t want
nobody telling me that, just to get off the jury. Now,
that’s not being fair with me.”305 Because he doubted
their sincerity, the judge began to disallow traditional
challenges for cause when jurors said they were reluctant to impose the death penalty. Instead, the prosecutor
had to use many of his nine peremptory challenges to
remove jurors who claimed to be anti-death penalty.
After exhausting his peremptory challenges, the
prosecutor sought to exclude a prospective juror, Mrs.
Bounds, who initially expressed hesitation about the
death penalty before saying she was able to impose it.
The prosecutor asked for an extra peremptory to compensate for the challenges he had used on jurors the
judge refused to dismiss for cause.
Rejecting the notion of giving the prosecutor an
extra challenge, the judge instead suggested they see if
there was a way Mrs. Bounds might be excluded for
cause. The judge told the prosecutor: “Go ask her if
she’d vote guilty or not guilty…let’s see what she says
to that. If she gets to equivocating on that, I’m going to
let her off as a person who can’t make up her mind.”306
When Mrs. Bounds said she did not know
whether she would vote guilty or not (she had, after all,
not heard any evidence since the trial had not yet
begun), the judge ruled that she was “totally indecisive.
She says one thing one time and one thing another.”307
The judge dismissed her for cause.
Admitting that the prosecutor had, in effect, lost
some of his peremptory challenges to the judge’s decision-making, Blackmun nevertheless concluded, “we
cannot condone the ‘correction’ of one error by the commitment of another.”308
Meanwhile, Blackmun concluded that the improper exclusion of a qualified juror could not be tolerated: “some constitutional rights are so basic to a fair
trial that their infraction can never be treated as harmless
error. The right to an impartial adjudicator, be it judge
or jury, is such a right.”309
Scalia’s dissent objected to nearly every premise
Winter 2009
of the majority opinion. Scalia believed the judge would
have been justified in granting the prosecution an extra
peremptory challenge, therefore Bounds would not have
been on the jury, therefore the defendant suffered no
harm when Bounds was removed for cause.
Scalia claimed that it is “certain that the jury that
was impaneled was identical to the jury that would have
been impaneled had the trial judge not erred”310 in refusing the prosecution’s earlier for cause challenges.
Later Scalia repeated his conclusion that it was “certain
that the trial judge’s decision to exclude Mrs. Bounds
for cause rather than granting that request [for an additional peremptory challenge] did not affect the composition of the jury in any way.”311 Scalia went on to say
the judge’s decision “could not possibly have affected
the composition of the jury”312 and that the resulting jury
was “identical”313 to the panel that otherwise would have
been created. Given there was no effect on the jury, and
therefore no effect on the defendant, “There is thus no
reason to vacate petitioner’s sentence.”314
Where the authority to grant the prosecution, and
only the prosecution, extra peremptory challenges
comes from, Scalia did not specify.315 Moreover, how
he could be “certain” that the resulting jury was “identical” is also hard to fathom since, presumably, a prosecutor armed with an extra peremptory challenge would
weigh the acceptability of every juror with a different
standard and would therefore adjust his strategy of using
the challenges. Both Blackmun in the majority opinion
and Powell in his concurring opinion note that the prosecutor may or may not have actually excluded Bounds
if he had an extra challenge, but it is inconceivable that
he would have engaged in precisely the same series of
challenges regardless of the number of challenges he
had at his disposal. Moreover, if the defense were to
also be granted an extra challenge in the interests of fairness the notion that an “identical” jury panel would
emerge becomes even more absurd.
The year after the Court decided Gray, it was
confronted by almost the opposite set of circumstances.
Rather than removing an eligible juror at the prosecution’s request, in Ross v. Oklahoma, the judge failed to
remove an ineligible juror at the defense’s request316
In a five to four decision, Rehnquist wrote for
the Court that the judge had indeed “erred” in failing to
“remove a juror whom the trial court should have excused for cause”317 because he stated he would support
the death penalty for the defendant regardless of the evidence or law. However, since the defense was able to
strike the juror (Mr. Huling) using a peremptory chalCriminal Law Brief
lenge, the error did not compromise petitioner’s “Sixth
and Fourteenth Amendment right to an impartial
jury.”318 That is, “petitioner exercised a peremptory
challenge to remove him, and Huling was thereby removed from the jury as effectively as if the trial court
had excused him for cause.”319
The standard announced in Gray (the “relevant
inquiry is whether the composition of the jury penal as
a whole could possibly have been affected by the trial
court’s error”320) suggests that the verdict must be overturned since Ross’ jury was indisputably affected by
what amounted to the defense’s loss of a peremptory
challenge. “Although we agree that the failure to remove
Huling may have resulted in a jury panel different from
that which would otherwise have decided the case,”
Rehnquist failed to see a reason to apply the Court’s
finding in Gray because it was “too sweeping to be applied literally.”321
The defense’s loss of a peremptory challenge is
not a “constitutional problem” because “we reject the
notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury” as “peremptory challenges are not of
constitutional dimension.”322
Oklahoma state law specifies that defendants
must use preemptory challenges to exclude jurors whom
the judge has erroneously allowed to sit. “As required
by Oklahoma law, petitioner exercised one of his
peremptory challenges to rectify the trial court’s error,
and consequently he retained only eight peremptory
challenges to use in his unfettered discretion. But he received all that Oklahoma law allowed him, and therefore
his due process challenge fails.”323
To Rehnquist, “There is nothing arbitrary or irrational” about such a policy as it serves “the goal of
empanelling an impartial jury.”324 This statement is
made without limitation. Thus if the judge refused to
exclude nine ineligible pro-death penalty jurors, while
simultaneously granting prosecution challenges to antideath penalty jurors, effectively preserving all peremptories for the prosecution while eliminating them for the
defense, there would be “nothing arbitrary or irrational”
about such an outcome.
Indeed, Rehnquist noted that loss of all peremptories to correct for a judge’s error would be acceptable
because “the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.”325
Limitations on the use of peremptory challenges
are portrayed as not only reasonable but obvious. “The
89
concept of a peremptory challenge as a totally free- tomatically impose death, for how else would the dewheeling right unconstrained by any procedural require- fense know of a juror’s position, and how else could the
ment is difficult to imagine.”326
defense act upon the rights Rehnquist discussed in Ross.
Instead, while six members of the Court found
Interestingly, Huling’s bias was so clear that
“had Huling sat on the jury that ultimately sentenced pe- the refusal to inquire about automatic imposition of the
titioner to death…the sentence would have to be over- death penalty to be a due process violation, Rehnquist,
turned.”327 However, Rehnquist questioned the notion Scalia, and Thomas dissented.
In an opinion written by White, the Court noted
that the panel that ultimately formed was less than impartial because “none of those 12 jurors…was [sic] chal- that “a juror who will automatically vote for the death
lenged for cause by petitioner.”328 Under Rehnquist’s penalty in every case will fail in good faith to consider
logic, then, when the challenge of a blatantly biased the evidence of aggravating and mitigating circumjuror is rebuffed, the defense should have responded by stances as the instructions require him to do.”334 The
challenging jurors whose responses were less egre- state was empowered to remove anti-death penalty persons from the jury with the right to ask about opposition
giously biased.
Justice Marshall issued an angry dissent stating, to capital punishment, but how could a defendant “ex“[a] man’s life is at stake. We should not be playing ercise intelligently his complementary challenge for
games.”329 The logic of forcing the defense to use one cause against those biased persons on the venire who as
of its peremptory challenges to
jurors would unwaveringly imcorrect a judge’s error was lost
death” if he could not ask
Marshall could not com- pose
on Marshall, who noted that,
questions to identify pro-death
“everyone concedes that the trial
prehend how the Court penalty excludables.335 Without
opportunity to ask a relevant
judge could not arbitrarily take
could fail to apply the
question of prospective jurors,
away one of the defendant’s
peremptory challenges. Yet, that
Gray precedent because the right to challenge for cause
becomes a “meaningless”
is in effect exactly what hap“here
the
trial
court,
330
right.336
pened here.”
Marshall could not comIn contrast to the proserather than excusing a
prehend how the Court could
cution’s direct question, the defail to apply the Gray precedent qualified juror, refused to fense was left to work with only
because “here the trial court, excuse a biased juror. . . .” a general question about whether
rather than excusing a qualified
prospective jurors thought they
juror, refused to excuse a biased
could be fair.
juror” but “the loss of a peremptory challenge in this
Scalia’s dissent, joined by Rehnquist and
case affected the composition of the jury panel in pre- Thomas, directly contradicted the language of the Ross
cisely the same way as the trial court’s error in Gray it- decision authored by Rehnquist and signed by Scalia a
year earlier. Gone is their conclusion that a single juror
self.”331
In Morgan v. Illinois, the prosecution requested who would automatically vote to impose death would
that the judge ask all prospective jurors if they would mean “the sentence would have to be overturned.”337 It
automatically vote against imposing the death is replaced with a sneering renouncement of the Court’s
penalty.332 The judge agreed. The defense then re- position in Ross, which is to say, a sneering renouncequested that the judge ask all prospective jurors if they ment of their own position in Ross. Scalia wrote: “The
would automatically vote for imposing the death penalty Court today holds that a juror who will always impose
and the judge declined.
the death penalty for capital murder is not ‘imparRecall in Ross that Rehnquist’s opinion, joined tial.’”338 He added, “The Court has, in effect, now added
by Scalia, asserted that, had someone who would auto- the new rule that no merciless jurors can sit.”339
Scalia stated that: “The fact that a particular
matically vote for a death sentence “sat on the jury that
ultimately sentenced petitioner to death…the sentence juror thinks the death penalty proper whenever capital
would have to be overturned.”333 Such a position seem- murder is established does not disqualify him” because
ingly would lock Rehnquist and Scalia into supporting there is no “requirement that all jurors must, on the facts
a death qualification question on the inclination to au- of the case, be amenable to entertaining” a sentence less
90
Winter 2009
state law in the case. Illinois law explicitly states “the
jury shall consider aggravating and mitigating factors”
– and “if the jury determines unanimously that there are
no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the
defendant to death.” Quite distinct from Scalia’s semantic jumble, Morgan had a right to have mitigating factors
considered and any juror who would automatically impose a death sentence was without question a “lawless
juror.”
White responded directly to Scalia’s position:
“Justice Scalia, in dissent, insists that Illinois is entitled
to try a death penalty case with one or even twelve jurors
who, upon inquiry, announce that they would automatically vote to impose the death penalty if the defendant
is found guilty of a capital offense, no matter what the
so-called mitigating factors, whether statutory or nonstatutory, might be. But such jurors obviously deem
mitigating evidence to be irrelevant to their decision to
impose the death penalty…”346 and are therefore “announcing an intention not to follow the instructions.”347
The essence of the conservatives’ holding on
death qualification is this: it is acceptable when a judge
strikes a juror for cause when that juror suggests the
slightest hesitation to impose the death penalty. It is acceptable when a judge fails to strike for cause a juror
Mitigating factors may include but need
who says the death penalty should be automatically imnot be limited to the following: (1) the
posed. It is acceptable when a judge goes to great
defendant has no significant history of
lengths questioning a juror seeking a pretense to strike
prior criminal activity; (2) the murder
her on the prosecution’s behalf. It is acceptable when a
was committed while the defendant was
judge refuses a defense request to ask even the most
under the influence of extreme mental or
basic and fundamental question regarding whether a
emotional disturbance, although not such
juror intends to follow the law. It is acceptable that
as to constitute a defense to prosecution;
death qualification advances the participation of convic(3) the murdered individual was a partiction prone jurors. It is, in Rehnquist’s words, a defense
ipant in the defendant’s homicidal conof the state’s right to an impartial trial. As a Constituduct or consented to the homicidal act;
tional matter the state holds no such right. Nevertheless,
(4) the defendant acted under the comthe conservatives’ creativity in advancing a state’s right
pulsion of threat or menace of the immito impartial trials is clearly magnified by their wobbly
nent infliction of death or great bodily
definition of impartial.
harm; (5) the defendant was not personTrait Exclusion
ally present during commission of the act
While the Court has weighed the right to exclude
or acts causing death.344
jurors based on their beliefs, so too has it been faced
with the even more thorny (although sometimes concurNevertheless, Scalia drew a distinction between rent) effort to exclude jurors based on race.
jurors who would never impose the death penalty and
Race, it would seem apparent, infects the capital
those who would always impose the death penalty. The prosecution process. For example, one study found that
former “juror is a lawless juror,” the latter “juror to be an African American defendant accused of killing a
disqualified under the Court’s new rule is not.”345
white person was eleven times more likely to be senScalia’s point again neatly ignores the applicable tenced to death than a white defendant accused of killing
than death.340
Scalia coined a new phrase when he concluded
“the Court’s exclusion of these death- inclined jurors”
is not “justified.”341
A juror who would automatically impose the
death penalty is admitting they would automatically dismiss any and all mitigating evidence. Scalia sees no
problem with that because “we have held, not that he
must consider mitigating evidence, but only that he may
not, on legal grounds, refuse to consider it.”342 Thus,
Scalia distinguishes between the right to have evidence
considered and the right to not have evidence not considered (which heretofore have been amounted to the
same thing). That is similar to the concept that, for example, the right of criminal defendants to counsel is effectively the same as the right not to be forced to not
have counsel.
Scalia proceeded to argue that since Illinois had
absolutely no standard to define mitigation, it is perfectly reasonable for jurors to impose a personal standard which effectively recognized no forms of
mitigation343.
Scalia’s position that mitigation goes undefined
is somewhat harder to defend upon consulting the relevant Illinois statute, which states:
Criminal Law Brief
91
an African American.348 Another study indicated that
the racial imbalance reflects both an increased likelihood that capital charges will be filed against the former
and an increased likelihood that once capital charges are
filed a death sentence will be returned.349 Yet another
calculated that less than two-tenths of one percent of the
executions in this country have been in response to a
white person killing an African American.350
One factor in these patterns is surely the response of the jury. Researchers have found notable differences in response to the race of the defendant and the
race of the victim.351
The Court, sensitive to both the reality and appearance of bias, has at times thundered against the exclusion of jurors. In Strauder v. West Virginia (1880),
the Court confronted a state law barring African Americans from jury service. The Court struck the law down
because: “The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights
it is selected or summoned to determine; that is, of his
neighbors, fellows, associates, persons having the same
legal status in society as that which he holds.”352 Jurors
must be “indifferently chosen” with regard to race to secure a defendant’s right to “protection of life and liberty.”353 The Court suggested that in this area the
judiciary should be held not only to a legal standard but
a societal standard because discrimination inside a
courthouse is “a stimulant to that race prejudice which
is an impediment to securing …equal justice.”354
Notable then are the efforts of Rehnquist and his
conservative colleagues a century later to defend exclusion and differential treatment based on race. While the
series of cases are not exclusively capital prosecutions,
they illustrate the foundation of their thinking as it applies to trait exclusion of jurors in capital proceedings,
and they represent the foundation of their conclusions
in the multiple hearings of the Miller-El death penalty
appeal.
In Batson v. Kentucky (1986),355 and subsequent
juror exclusion cases, the means of achieving exclusion
was the peremptory challenge. Batson, an African
American on trial for burglary, objected to the prosecutor’s use of peremptory challenges to remove all of the
prospective African American jurors from serving on his
jury. Batson claimed a violation of the fair cross section
requirement and the due process clause of the 14th
Amendment.
In a seven to two decision, the Court agreed.
Writing for the Court, Justice Powell concluded that “the
defendant does have the right to be tried by a jury whose
92
members are selected pursuant to nondiscriminatory criteria.”356 Further, “the Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely on account of their race.”357 To operationalize this right, the
Court ruled that if a prosecutor engages in an apparent
pattern of racial exclusion the burden will be placed on
the prosecutor to demonstrate that there was some nonrace based rationale that guided the decision on whom
to challenge.358
Rehnquist again dissented from a holding that
would protect equal access to juries. In the process,
Rehnquist offered a strong defense of the peremptory
challenge. “I cannot subscribe to the Court’s unprecedented use of the Equal Protection Clause to restrict the
historic scope of the peremptory challenge, which has
been described as ‘a necessary part of trial by jury.’ In
my view, there is simply nothing ‘unequal’ about the
State’s using its peremptory challenges to strike blacks
from the jury...”359 Thus, in addition to accommodating
the “historic” nature of peremptory challenges, Rehnquist accommodates the “historic” nature of racism.
Indeed, he characterized race-based thinking as
“extremely useful.”360
“The use of group affiliations, such as age, race,
or occupation, as a ‘proxy’ for potential juror partiality…has long been accepted as a legitimate basis for the
State’s exercise of peremptory challenges….Given the
need for reasonable limitations on the time devoted to
voir dire, the use of such ‘proxies’ by both the State and
the defendant may be extremely useful in eliminating
from the jury persons who might be biased in one way
or another.”361
Four years after Batson, Daniel Holland objected
to peremptory challenges used by the prosecution to create an all-white jury in his kidnapping trial (Holland v.
Illinois 1990362). Unlike Batson, however, Holland was
white. Holland objected to the exclusion of African
Americans on Sixth Amendment fair cross section
grounds.
In a five to four decision, written by Scalia and
joined by Rehnquist, the Court offered an even more
forceful defense of peremptory challenges. An impartial
jury “compels peremptory challenges.”363 Scalia concluded that under the Sixth Amendment we are guaranteed “not a representative jury…but an impartial one”364
and an impartial jury “would positively be obstructed”365
by a petit jury fair cross section requirement, because
one would have to “cripple”366 the peremptory challenge
which “would undermine rather than further the Amendment’s guarantee of the right to trial by ‘an impartial
Winter 2009
jury.’”367
“The rule we announce today is not only the
only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment’s central purpose as well. Although the constitutional
guarantee runs only to the individual and not to the
State, the goal it expresses is jury impartiality with respect to both contestants.”368 Just as Rehnquist did in
Adams369, Scalia here re-writes the Sixth Amendment to
protect heretofore unmentioned (in the Constitution)
rights of the State.
While ruling against Holland’s fair cross section
claim, Scalia admitted that, an Equal Protection case
against race based juror exclusion would have merit:
By refusing to apply the fair cross section requirement, Marshall argued the Court empowered
“prosecutor’s systematic use of peremptory challenges
to exclude Afro-American prospective jurors on the
ground that they, as a class, lack the intelligence or impartiality fairly to fill the juror’s role”374
The next year Powers v. Ohio375 brought much
the same facts to the Court as did Holland. Larry Joe
Powers was a white defendant who objected to the prosecution’s use of peremptory challenges to eliminate
African Americans from his jury. Unlike Holland, Powers advanced an Equal Protection argument rather than
a fair cross section argument.
The Court, in a seven to two decision, agreed
“The Equal Protection Clause prohibits a prosecutor
We do not hold that the systematic exfrom using the State’s peremptory challenges to exclude
clusion of blacks from the jury system
otherwise qualified and unbiased persons from the petit
through peremptory chaljury solely by reason of their
lenges is lawful; it obviously
race.”376
The Court ruled that
Kennedy, writing for the
is not. We do not even hold
that the exclusion of blacks
not only the plaintiff Court, quoted Scalia’s opinion in
through peremptory chalHolland stating, “as the Holland
Court made explicit, however,
lenges in this particular trial but also the prospecracial exclusion of prospective juwas lawful. Nor do we even
tive jurors themrors violates the overriding comhold that this particular
mand of the Equal Protection
(white) defendant does not selves have a right to
Clause, and ‘race-based exclusion
have a valid constitutional
a selection process
is no more permissible at the indichallenge to such racial exnot
based
on
race.
vidual petit jury stage than at the
clusion. All we hold is that
venire stage.’”377 The Court ruled
he does not have a valid conthat not only the plaintiff but also
stitutional challenge based on
370
the prospective jurors themselves have a right to a sethe Sixth Amendment.
lection process not based on race.378 Scalia, joined by
In fact, Scalia argues that while the Sixth Amendment Rehnquist, vigorously dissented from the decision
establishes only the need for a representative jury pool founded on Scalia’s own words.
not a representative jury, and was therefore satisfied in
Where Scalia asserted in Holland that the Sixth
Holland’s case, the Fourteenth Amendment by contrast Amendment did not apply to racial exclusion, but Equal
applies to both the pool and the resulting jury: “[t]he Protection did, a year later he realized, “What is true
Fourteenth Amendment’s prohibition of unequal treat- with respect to the Sixth Amendment is true with respect
ment in general and racial discrimination in particular to the Equal Protection Clause as well.”379 In other
…has equal application at the petit jury and the venire words, neither applied to Powers’ claim.
Scalia fumed that nothing in the Court’s decision
stages, as our cases have long recognized.”371
In his dissent, Marshall objected to the Court’s in Strauder380 compelled the protection of a white dedistinction between the goals of an impartial jury and a fendant from a jury process which excluded African
fair cross section jury, arguing that the latter goal does Americans. “It was not suggested in Strauder, and I am
not serve the former is “a false dichotomy.”372 Also, sure it was quite unthinkable, that a white defendant
writing in his dissent, Stevens echoed the sentiment: “A could have had his conviction reversed on the basis of”
jury that is the product of such a racially discriminatory a process which “did not exclude members of his
selection process cannot possibly be an ‘impartial jury’ race.”381 Scalia did not emphasize that the case in which
“it was quite unthinkable” was decided more than 100
within the meaning of the Sixth Amendment.”373
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93
years earlier, in a time of rampant legal segregation.
Moreover, if Strauder was the controlling precedent in
Powers, surely it was the controlling precedent a year
earlier in Holland when Scalia wrote for the Court: “We
do not hold that the systematic exclusion of blacks from
the jury system through peremptory challenges is lawful; it obviously is not.”382
In a new formulation, however, Scalia realized
that the systematic exclusion of African Americans from
jury service by prosecutors’ use of peremptory challenges is actually an indication of equality. “When that
group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic,
its members have been treated not differently, but the
same. In fact, it would constitute discrimination to exempt them from the peremptory strike exposure to
which all others are subject. If, for example, men were
permitted to be struck but not women, or fundamentalists but not atheists, or blacks but not whites, members
of the former groups would plainly be the object of discrimination.”383
That logic would support innumerable legal conclusions – it would be perfectly reasonable to ban
African Americans from part of a bus, say the front, if
you banned whites from part of the bus, say the back,
because in that case everyone would be barred from part
of the bus.
Indeed, the majority casts Scalia’s position in
just such a light. “The suggestion that racial classifications may survive when visited upon all persons is no
more authoritative today than the case which advanced
the theorem, Plessy v. Ferguson (1896). This idea has
no place in our modern equal protection jurisprudence.
It is axiomatic that racial classifications do not become
legitimate on the assumption that all persons suffer them
in equal degree.”384
As Rehnquist argued in his Batson dissent,
Scalia reminds us that race based use of peremptory
challenges is inherently rational. “A peremptory strike
on the basis of group membership implies nothing more
than the undeniable reality (upon which the peremptory
strike system is largely based) that all groups tend to
have particular sympathies and hostilities.”385
Scalia also reminded us that the thrust of the
Court’s thinking endangers peremptory challenges. “To
affirm that the Equal Protection Clause applies to strikes
of individual jurors is effectively to abolish the peremptory challenge.”386 Instead, peremptory challenges need
protection because they ensure that “the jury will be the
fairest possible.”387 The notion that peremptory chal94
lenges could have unconstitutional consequences “is implausible” because they are “such a permanent and universal feature of our jury-trial system.”388
But that logic implies that it is impossible to use
a legal tactic for nefarious purposes. That is the very
essence of this case; not that peremptory challenges are
unconstitutional, but that using them for racial purposes
would be. Similarly, the state’s powers to arrest and
prosecute are “permanent and universal” features, but
nothing in their ubiquity prevents them from being marshaled for discriminatory purposes and ultimately being
subject to limitation.
Finally, Scalia noted that protecting the individual juror, rather than the defendant, from exclusion is
also specious. “We have never held, or even said, that
a juror has an equal protection right not to be excluded
from a particular case through peremptory challenge.”389
Scalia neatly overlooked a federal law. Section 243 of
the Civil Rights Act of 1875, which was enacted as a
way to give meaning to the recently enacted Fourteenth
Amendment, provides:
No citizen possessing all other qualifications which are or may be prescribed by
law shall be disqualified for service as
grand or petit juror in any court of the
United States, or of any State on account
of race, color, or previous condition of
servitude.
Thus, to the extent that Justice Scalia intends to say that
there is no constitutional-level guarantee that jurors are
not excluded for inappropriate reasons, he is, at least,
misleading. In addition, to the extent that he means that
there is no support in the Constitution or federal law that
jurors have an explicit right not to be excluded for the
wrong reasons, he is wrong.
In Miller-El v. Cockrell (2003)390, the prosecution in Dallas County, Texas used 10 peremptory challenges to remove African Americans from the capital
jury.
In an eight to one decision, the Court found
“substantial evidence” of racial bias in jury selection, in
violation of principles held in Batson, and therefore restored Miller-El’s ability to appeal his sentence.391
The prosecution in the case not only used
peremptories against African Americans, but treated
African Americans disparately throughout the voir dire
process. While whites were typically asked for their
thoughts on the death penalty without preface, African
Winter 2009
Americans were first told what the death penalty means
and then asked the question.392 While whites were typically told what the minimum sentence would be if the
defendant was convicted and then asked if they could
impose it, African Americans were not told what the
minimum sentence was and were asked only what it
should be. Thus, “prosecutors designed their questions
to elicit responses that would justify the removal of
African-Americans from the venire.”393
The defense unearthed evidence that discrimination against jurors was a standing practice in the prosecutor’s office. A sitting judge testified that when he
worked in the prosecutor’s office, superiors had told him
not to allow African Americans on juries. A Dallas
County district attorney memo from the 1960s – known
to at least one of the prosecutors in the present case –
instructed prosecutors to exercise peremptory challenges
against minorities: “Do not take Jews, Negroes, Dagos,
Mexicans or a member of any minority race on a jury,
no matter how rich or how well educated.”394
Taking up the mantle of defending exclusion in
this case was Justice Thomas. In his dissent, Thomas
called the defense’s allegations “entirely circumstantial.”395
Why did the prosecutor ask whites and African
Americans different questions? According to Thomas:
“The strategy pursued by the prosecution makes perfect
sense: When it was necessary to draw out a venireman’s
feelings about the death penalty they would use the
graphic script, but when it was overkill they would
not.”396
The slight logical flaw in that position is that the
description of execution preceded the question on the
death penalty – thus the “strategy” that “makes perfect
sense” would have also required the prosecutor to see
into the future. Thomas concedes the point: “I recognize that these voir dire statements only indirectly support respondent’s explanation because the graphic script
was typically given at the outset of voir dire—before the
above quoted veniremen had the chance to give their
stark answers.”397
Even so, after conducting his own analysis in
which he compared the treatment of individual white
and African American prospective jurors, Thomas disputed that race was related to the type of questions that
the prosecutor asked. After all, in Thomas’ calculation:
“race predicted use of the graphic script only 74% of the
time.”398
After the Court affirmed Miller-El’s right to proceed with his appeal, lower courts rejected his conCriminal Law Brief
tention that the construction of his jury was with a racial
blueprint. Miller-El’s appeal of that conclusion would
itself be aired before the Court in 2005 in Miller-El v.
Dretke.
In a six to three decision, the Court found “clear
and convincing” evidence of racial bias indicated by the
overall pattern in jury selection (“By the time a jury was
chosen, the State had peremptorily challenged twelve
percent of qualified nonblack panel members, but eliminated 91% of the black ones. It blinks reality to deny
that the State struck [jurors] because they were black.”),
the disparate questioning of white and African Americans during voir dire, and the irreconcilable use of explanations to justify the removal of African Americans
while similarly situated whites were accepted. (“Nonblack jurors whose remarks on rehabilitation could well
have signaled a limit on their willingness to impose a
death sentence were not questioned further and drew no
objection, but the prosecution expressed apprehension
about a black juror’s belief in the possibility of reformation even though he repeatedly stated his approval of
the death penalty and testified that he could impose it
according to state legal standards…”).399
To the majority, “the very integrity of the courts
is jeopardized” when prosecutors respond to potential
jurors based on “illegitimate grounds like race.”400
In a dissent joined by Rehnquist and Scalia,
Thomas again took exception to Miller-El’s claim that
race was a factor in jury selection. Referring to the case
as “the antithesis of clear and convincing evidence,”
Thomas’s analysis found no hint of racialized thinking
or behavior.
Thomas rejected the majority’s contention that
whites and African Americans with similar voir dire responses were treated differently. “To isolate race as a
variable,” Thomas wrote, would require that “the jurors
must be comparable in all respects that the prosecutor
proffers as important.” In other words, a prosecutor
could never be found to violate the prohibition on using
race in jury selection because any difference the prosecutor identifies would justify disparate treatment.401
Indeed, Thomas noted “any number of characteristics other than race could have been apparent to
prosecutors from a visual inspection of the jury panel.”
What those factors would be, other than similarly proscribed gender, Thomas did not specify.
Even where prospective white and African
American jurors in Miller-El’s case were identical in
thinking, background, and all other respects, Thomas
warned that comparisons of their treatment still would
95
not be meaningful. Whites, Thomas noted, “were questioned much later in the jury selection process, when the
State had fewer peremptories to spare” thus requiring a
different strategic response.
Thomas’ conclusion is somewhat ironic given
that his attention to comparisons of individual jurors in
the first Miller-El case was at the heart of his conclusion
that race was not a factor, and was central to the majority’s interest in conducting its own comparison of individual jurors in the second Miller-El case. Apparently,
then, Thomas has concluded that Whites and Africans
Americans were not similarly situated enough that differences in their treatment reveal anything about racial
disparities. At the same time, however, he has also concluded that Whites and African Americans were similarly situated enough that similarities in their treatment
reveal the absence of racial disparities.
Indeed, Thomas held up several examples of
whites who were treated similarly to African Americans.
Even more forcefully, Thomas pointed to prospective
white jurors who were more favorable to the death
penalty than several African Americans, but were nevertheless struck from the panel by the prosecution. For
example, Thomas scolded the majority for failing to explain why the prosecution struck “Penny Crowson, a
white panelist who expressed a firm belief in the death
penalty.”402 Thomas’ choice of Crowson as an exemplar
of his case suggests how little foundation existed for his
position. That is, although Thomas did not note it in his
dissent, Crowson has said in voir dire that she would.403
It is odd that Thomas used Crowson as an example of
the prosecution’s fairness. Indeed, one wonders how
Thomas concluded Crowson had a “firm belief in the
death penalty?”404 The answer: that precise phrase,
without explanation or justification, appeared twice in
the state’s brief for the case.405
Miller-El’s case demonstrates the depth of
Thomas, Scalia, and Rehnquist’s deference to the prosecution. Even under Thomas’ highly favorable accounting, race accounted for 74% of the state’s questioning
pattern in voir dire. But the prosecution said race did
not matter – so race did not matter. But this deference
has the effect of nullifying the rights of the defendant.
Overall the racial exclusion cases demonstrate
the conservatives’ tendency to redefine the issue – first
by questioning that exclusion is wrong, then by questioning that it happens, then by questioning that it matters. Even as Miller-El successfully appealed the
prosecution’s racial blueprint for his case, his experience
only serves to dramatize the absurdly high bar one must
96
clear to demonstrate discrimination in jury selection.
Miller-El had not only stark numbers on his side but a
clear and unmistakable pattern of differential treatment
infecting all phases of the jury selection process and a
documented history of racist jury selection. In Rehnquist, Scalia, and Thomas’s view, the resulting right, in
effect, is not to a jury of one’s peers, but to a jury selected by anything short of boastfully racist procedures.
ConClusion
Jury service “is not a pleasant experience in many jurisdictions” as it “tends
to be time consuming and often seemingly useless from the point of view of
the prospective juror” – Justice Rehnquist 406
With the participation of the Court’s most conservative members, the right to a jury determination of
a capital defendant’s fate has expanded. The era of
judges making factual determinations then determining
whether to apply a death sentence (for example in Arizona) or judges having the power to overrule a jury’s
life sentence to impose death (for example in Florida)
are over.
The expanded right to access a jury and have it
hold determinative power over a defendant’s life has
not, however, been accompanied by commensurate attention to the instructions that guide those jurors through
the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel.
In brief, the right to a jury has been enhanced
without concern for the government’s obligations necessary to animate that right. This contradiction has clear
consequences. A capital defendant puts his life in the
hands of a group we have strong reason to suspect will
have difficulty understanding their instructions, difficulty defining and applying mitigating evidence, and uncertainty regarding the true meaning of the sentences
available to them. Moreover, that group was assembled
systematically to be unrepresentative of community
mores.
In the cases highlighted here, dealing with mitigation instructions, the definition of sentences, belief
exclusion, and trait exclusion, Rehnquist, Scalia, and
Thomas have led the Court toward a laissez faire position on the jury system. They assert there is no problem.
Winter 2009
They offer unfalsifiable and infallible evidence that the
jury functioned properly. If a problem arises, they assert
it has no consequence. If it has a consequence, they assert it was permissible because the problem could have
happened by chance, or was inevitable, or affected only
some jurors, or served their newly discovered state’s
right to an impartial trial.
Even as they strongly advance their arguments,
their standards for defining an acceptable jury system
are slippery. This is perhaps best embodied by a comparison of the logic raised in response to the use of
peremptory challenges. When the state used peremptory
challenges to eliminate African Americans from the jury,
Scalia declared the right to unfettered use of peremptory
challenges must never be thwarted because the Constitution’s guarantee of an impartial jury “compels peremptory challenges.”407 Scalia added that peremptory
challenges are a “permanent and universal feature of our
jury-trial system”408 which serves to ensure “the jury
will be the fairest possible.”409 Similarly, Rehnquist
noted “the historic scope of the peremptory challenge,
which has been described as ‘a necessary part of trial by
jury.’”410
When a defendant lost a peremptory challenge
to a judge’s failure to remove what Rehnquist called “an
incompetent juror” the historic, permanent and universal, compelled nature of peremptory challenges took on
a different hue.411 The defense’s loss of a peremptory
was in Rehnquist’s words (joined by Scalia): not a “constitutional problem” because “we reject the notion that
the loss of a peremptory challenge constitutes a violation
of the constitutional right to an impartial jury” as
“peremptory challenges are not of constitutional dimension.”412
Whether in response to peremptory challenges,
or the many other issues raised here, the conservatives
on the Court come perilously close to defining a “fair
jury” as falling within the parameters of whatever happened to occur in a particular case. Thus, under Rehnquist, Scalia, and Thomas’ views, the capital
defendant’s right to access a jury expands while his
right to access an impartial jury contracts.
Buchanan v. Angelone, 522 U.S. 269, 283 (1998) (Breyer, J., dissenting).
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
3
Ring v. Arizona, 536 U.S. 584 (2002).
4
See, e.g., Richard L. Wiener et al., Guided Jury Discretion in Capital
Murder Cases: The Role of Declarative and Procedural Knowledge, 10
1
Criminal Law Brief
PSYCHOL. PUB. POL’Y & L. 516, 571-72 (2004) [hereinafter Wiener et al.,
Guided Jury] (finding that the complexity of jury instructions makes it
difficult for jurors to understand those instructions, and can sometimes
lead juries to impose harsher sentences than warranted).
5
In re Winship, 397 U.S. 358 (1970).
6
Id. at 364.
7
Even the foundational question regarding how many members are required to form a jury has been subject to stark revision. After what the
Court found to be several hundred years of established practice requiring
a twelve person jury, the Court moved to explicitly sanction smaller panels. The minimum jury panel in criminal cases is six members. In
capital cases, however, every state uses a twelve-member jury. Ballew v.
Georgia, 435 U.S. 223 (1978).
8
McMillan v. Pennsylvania, 477 U.S. 79 (1986).
9
Id. at 80-84 (agreeing with the Supreme Court of Pennsylvania that
Pennsylvania’s Mandatory Minimum Sentencing Act did not “create a
new set of upgraded felonies of which visible possession is an ‘element’”).
10
Id. at 93.
11
Id.
12
Walton v. Arizona, 497 U.S. 639 (1990).
13
Id. at 649 (asserting that aggravating circumstances do not rise to the
level of elements of a crime, and thus do not require a jury finding).
14
Jones v. United States, 526 U.S. 227 (1999).
15
Id. at 231.
16
Id. at 236 (remarking that neither the Court nor the Government could
think of a good reason for Congress to treat robbery and aggravated robbery in the same manner for sentencing purposes).
17
Id. at 251-52.
18
Apprendi v. New Jersey, 530 U.S. 466 (2000).
19
Id. at 476.
20
Id. at 477 (internal quotations omitted).
21
Id. at 478.
22
Id. at 485.
23
Id. at 490. The “other than the fact of a prior conviction” language in
the Apprendi holding evolved out of another case, in which the Court
was not troubled by a judicial finding that increased a sentence beyond
the statutory maximum when the increase was based on prior felony convictions that (a) the defendant admitted, and (b) were themselves subject
to the protections of due process. Almendarez-Torres v. United States,
523 U.S. 224 (1998).
24
Id. (quoting Jones v. United States, 526 U.S. 227, 252-53 (1999)).
25
Id. at 497 (quoting Almendarez-Torres, 523 U.S. 224, 257 n.2 (Scalia,
J., dissenting)).
26
Ring v. Arizona, 536 U.S. 584 (2002).
27
Id. at 588-89 (implying that the relevant portion of the holding in Walton was incompatible with a defendant’s Sixth Amendment rights).
28
Id. at 609.
29
Id. at 609 (overruling Walton in part).
30
Blakeley v. Washington, 542 U.S. 296 (2004).
31
Id. at 298.
32
Id. at 303-304 (emphasis in original).
33
United States v. Booker, 543 U.S. 220 (2005).
34
Id. at 244 (requiring a defendant admission or proof beyond a reasonable doubt in order to impose a sentence above the “maximum authorized by the facts”).
35
See, e.g., Wiener et al., Guided Jury, supra note 4, at 571-72 (finding
that complex jury instructions are difficult for jurors to understand).
36
See Weeks v. Angelone, 528 U.S. 225, 234 (2000).
37
Francis v. Franklin, 471 U.S. 307, 324 (1985).
38
See generally Judith L. Ritter, Your Lips are Moving . . . but the Words
Aren’t Clear: Dissection the Presumption that Jurors Understand Instructions, 60 MO. L. REv. 163 (2004) (providing an interesting discussion regarding the linguistic distinction between assumption and
presumption¸ terms that are often used interchangeably in court opinions
and the literature).
97
Weeks, 528 U.S. at 226 (2000).
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
41
Numerous studies have shown that jurors are not able to understand
the applicable law. See, e.g., R.W. Buchanan et al., Legal Communication: An Investigation of Juror Comprehension of Pattern Instructions,
COMM. Q., Fall 1978, at 31; Robert P. Charrow & veda R. Charrow,
Making Legal Language Understandable: A Psycholinguistic Study of
Jury Instructions, 79 COLUM. L. REv. 1306 (1979); Sally Costanzo &
Mark Costanzo, Life or Death Decisions: An Analysis of Capital Jury
Decision Making Under the Special Issues Sentencing Framework, 18
LAW & HUM. BEHAv. 151 (1994); Shari Seidman Diamond & Judith N.
Lev, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 JUDICATURE 224 (1996); Amiram Elwork et al., Toward
Understandable Jury Instructions, 65 JUDICATURE 432 (1982); Walter W.
Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent
Failure to Communicate, 67 N.C. L. REv. 77 (1988); David U. Strawn &
Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 JUDICATURE 478 (1976); Richard L. Wiener et al., The Role of Declarative and
Procedural Knowledge in Capital Murder Sentencing, J. Applied Soc.
Psychol. 124 (1998).
42
James S. Liebman et al., A Broken System: Error Rates in Capital
Cases, 1973-1995 n.42 (2000), available at
http://www2.law.columbia.edu/instructionalservices/liebman/ (follow
“Full Report and Endnotes” hyperlink)
(noting that reversal occurred “only if [the jury instructions] probably affected the outcome of the trial”).
43
Gregg v. Georgia, 428 U.S. 153 (1976).
44
Furman v. Georgia, 408 U.S. 238 (1972).
45
Gregg, 428 U.S. at 189.
46
Jurek v. Texas, 428 U.S. 262 (1976); Lockett v. Ohio, 438 U.S. 586
(1978).
47
Mills v. Maryland, 486 U.S. 367 (1988) (noting that petitioner, who
was the defendant below, suggested his “relative youth, his mental infirmity, his lack of future dangerousness, and the State’s failure to make
any meaningful attempt to rehabilitate [him] while he was incarcerated”
as potential mitigating factors).
48
See, e.g., Wiener et al., Guided Jury, supra note 4.
49
Id., at 570.
50
See James Frank & Brandon K. Applegate, Assessing Juror Understanding of Capital Sentencing Instructions, 44 CRIME & DELINQ. 412
(1998).
51
Id.
52
Id.
53
Id.
54
Id.
55
See Wiener et al., Comprehensibility of Approved Jury Instructions in
Capital Murder Cases, 80 J. Applied Psychol. 455 (1995) [hereinafter
Wiener et al., Comprehensibility].
56
Id.
57
See Craig Haney & Mona Lynch, Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions, 18
Law & Hum. Behav. 411 (1994).
58
Id. The potential for twisting mitigating evidence into aggravating evidence is not merely theoretical. As O’Connor noted in Roper v. Simmons, “the prosecutor’s apparent attempt to use respondent’s youth as an
aggravating circumstance in this case is troubling.” Roper v. Simmons,
543 U.S. 551, 603 (2005) (O’Connor, J., dissenting).
59
Craig Haney et al., Deciding to take a Life: Capital Juries, Sentencing
Instructions, and the Jurisprudence of Death, 50 J. Soc. Issues 149
(1994).
60
Id. at 167. In Roper, the Court acknowledged the tenuous hold mitigating evidence (for example, immaturity) maintains on the jury’s attention:
An unacceptable likelihood exists that the brutality
or cold-blooded nature of any particular crime would
overpower mitigating arguments based on youth as a
39
40
98
matter of course, even where the juvenile offender’s
objective immaturity, vulnerability, and lack of true
depravity should require a sentence less severe than
death.” Scalia disapprovingly extended the Court’s
conclusion; that is, if juries are unable to process
mitigating evidence regarding immaturity why
would they be thought capable of applying any other
mitigating information. Scalia wrote, “[n]or does the
Court suggest a stopping point for its reasoning. If
juries cannot make appropriate determinations in
cases involving murderers under 18, in what other
kinds of cases will the Court find jurors deficient?
We have already held that no jury may consider
whether a mentally deficient defendant can receive
the death penalty, irrespective of his crime. Why not
take other mitigating factors, such as considerations
of childhood abuse or poverty, away from juries as
well? Surely jurors ‘overpower[ed]’ by ‘the brutality
or cold-blooded nature’ of a crime could not adequately weigh these mitigating factors either.
Roper, 543 U.S. at 573 (Scalia, J., dissenting).
61
Bryan C. Edelman, Misguided Discretion: A Dual Process Model of
Juror and Jury Sentencing in Capital Trials (2004) (Ph.D. dissertation,
University of Nevada).
62
Wiener et al., Guided Jury, supra note 4, at 531.
63
Michael Burkhead & James Luginbuhl, Sources of Bias and Arbitrariness in the Capital Trial, 50 J. Soc. Issues 103 (1994).
64
Wiener et al., Guided Jury, supra note 4, at 572.
65
Franklin v. Lynaugh, 487 U.S. 164 (1988) (finding that it was not error
for the trial court to deny defendant’s request for jury instruction on mitigation where defendant was not prevented from presenting evidence indicating mitigation during the course of trial).
66
Buchanan v. Angelone, 522 U.S. 269 (1998) (holding that there is no
Eighth Amendment requirement for either general jury instructions on
mitigation or specific jury instructions about statute-based mitigation
factors).
67
Boyde v. California, 494 U.S. 370 (1990) (upholding Supreme Court
of California, which found that a general jury instruction on mitigation
allowing the jury to consider “all of the evidence” permitted the jury to
take the defendant’s character and background into account and thus
needed no further clarification).
68
Weeks v. Angelone, 528 U.S. 225 (2000) (noting that “a slight possibility that the jury considered itself precluded from considering mitigating evidence . . . is insufficient to prove a constitutional violation”)
(emphasis in original).
69
Francis v. Franklin, 471 U.S. 307 (1985).
Id. at 331-42 (Rehnquist, J., dissenting).
Id. at 309.
72
Id. at 310.
73
Id. After being unable to get inside the dentist’s car, Franklin, still
holding his hostage, demanded car keys from scattered passers-by. Id.
One person said he did not have a car, and another refused to part with
his keys. Id.
74
Id.
75
Id.
76
Id. Franklin continued unsuccessfully to seek a car before giving up,
and releasing the hostage. Id.
77
Id. at 310-11.
78
Id.
79
Id.
80
Id. at 309. The jury was instructed that “[t]he acts of a person of sound
mind and discretion are presumed to be a product of the person’s will,
but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of
his acts but the presumption may be rebutted.” Id.
70
71
Winter 2009
Id. at 312.
Id.
83
Id.
84
Id. at 319.
85
Id. at 316.
86
Id. at 318.
87
Id. at 320.
88
Id. at 322.
89
Id. at 322.
90
Id. at 331 (Rehnquist, C.J., dissenting) (emphasis added).
91
Id. at 342.
92
Id. at 340.
93
Id. at 332.
94
Id. at 339.
95
442 U.S. 62, 73 (1979).
96
Id. at 324 n.9.
97
Id. at 341 (emphasis added).
98
Id. at 342 (emphasis in original).
99
Id. at 324 n.8.
100
Stromberg v. California 283 U.S. 359 (1931).
101
487 U.S. 164 (1988).
102
Id. at 163 n.3.
103
Id. at 170. The defense asked for modifications to the instruction to
explain the use of mitigation. Id. at 170 & n.4. Specifically the defense
asked that the jury be told (1) to apply any mitigating evidence found
when deciding upon the aggravating factors, and that (2) even if they answered the aggravating factors affirmatively they could still use mitigation findings to support a vote for a life term. Id. The judge declined the
defense’s request. Id.
104
Id. at 170-71.
105
Id.
106
Id. at 170.
107
Id. at 177.
108
Id. at 178-79.
109
Id. at 183.
110
See supra note 102 and accompanying text.
111
Franklin v. Lynaugh, 487 U.S. 164, 191 (1988) (Stevens, J., dissenting).
112
Id. at 192-93.
113
Franklin v. Lynaugh, 487 U.S. 164, 184-85 (1988) (O’Connor, J., concurring) (“To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was
free to give effect to that evidence.”).
114
Buchanan v. Angelone, 522 U.S. 269 (1998).
115
Id. at 273 n.1.
116
Id. at 272.
117
Id. Specifically, the defense sought to provide jurors with a list of
mitigating factors such as Buchanan’s age, impaired capacity, and lack of
previous violent offenses. Id.
118
Id. at 273.
119
Id. at 758-59.
120
Id. at 276.
121
Id. at 277.
122
Id. at 278.
123
See supra notes 101-108 and accompanying text.
124
Buchanan v. Angelone, 522 U.S. 269, 279 (1998) (Scalia, J, concurring).
125
Id. at 279
126
Buchanan v. Angelone, 522 U.S. 269, 282 (1998) (Breyer, J., dissenting) (asserting that the majority erred in isolating a specific portion of
the jury instructions and should have considered the instructions in the
context of all the instructions about sentencing.).
127
Id. at 283.
128
Id. at 283.
129
Id. at 278.
130
Breyer wrote in dissent that the third paragraph of juror instructions,
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82
Criminal Law Brief
what he labeled the “key paragraph,” provided
if the jury finds that the Commonwealth has proved
death eligibility, the jury “may fix the punishment
… at death.” It immediately adds in the same sentence “or if you believe from all the evidence that
the death penalty is not justified, then you shall fix
the punishment . . . at life imprisonment.” It is the
stringing together of these two phrases, along with
the use of the connective “or,” that leads to a potential understanding of the paragraph as saying, “If
you find the defendant eligible for death, you may
impose the death penalty, but if you find (on the
basis of ‘all the evidence’) that death penalty is not
‘justified,’ which is to say that the defendant is not
eligible for the death penalty, then you must impose
life imprisonment.” Without any further explanation, the jury might well believe that whether death
is, or is not, “justified” turns on the presence or absence of...aggravating circumstances of the crime–
not upon the defendant’s mitigating evidence about
his upbringing and other factors.
Id. at 282. Rehnquist replied,
The dissent suggests that the disjunctive “or” clauses
in the third paragraph may lead the jury to think that
it can only impose life imprisonment if it does not
find the aggravator proved. But this interpretation is
at odds with the ordinary meaning of the instruction’s language and structure. . . . The third paragraph states that “if” the aggravator is proved, the
jury may choose between death and life. The fourth
paragraph states that “if” the aggravator is not
proved, the jury must impose life. The “if” clauses
clearly condition the choices that follow. And since
the fourth paragraph tells the jury what to do if the
aggravator is not proved, the third paragraph clearly
involves only the jury’s task if the aggravator is
proved.
Id. at 277 n.4 (emphasis in original).
131
Boyde v. California, 494 U.S. 370 (1990).
132
Id. at 373 & n.1.
133
Id. at 374.
134
Id. at 374.
135
Id. at 372-77.
136
Id.
137
Id. at 372.
138
Id. at 380.
139
Id. at 383 ( “Even where the language of the instruction is less clear
than we think, the context of the proceedings would have led reasonable
jurors to believe that evidence of petitioner’s background and character
could be considered in mitigation.”). Id.
140
Id. at 381-83 (relying on a reasonable juror standard and asserting that
a reasonable juror could have construed the language of the instruction
in the manner that permitted consideration of mitigating factors).
141
Id. at 380.
142
Id. at 380.
143
Id. at 380.
144
Francis v. Franklin, 471 U.S. 307, 315 (1985) (emphasis added).
145
Boyde v. California, 494 U.S. 370, 380 (1990) (emphasis added).
146
Id. at 406 (Marshall, J., dissenting).
147
Id.
148
Id. at 380-81 (relying only upon the reasonable juror standard).
149
But, as was made clear in his interpretation of juror tears in Weeks v.
Angelone, divining the thoughts of jurors in their secret deliberations is
something of a specialty for Rehnquist and his fellow conservatives. Id.
at 380.
150
Id. at 380-81.
99
Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same
way that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in
the deliberative process, with commonsense understanding of the instructions in the light of all that has
taken place at the trial likely to prevail over technical
hairsplitting.
Id.
See Wiener et al., Guided Jury, supra note 4.
Boyde v. California, 494 U.S. 370, 395 (1990) (Marshall, J., dissenting).
153
Id. at 399 (emphasis in original).
154
Id. at 398.
155
Id. at 399.
156
Id. at 406.
157
Id. at 380 (stressing that the challenged instruction was not, itself, erroneous).
158
Id. at 389 (emphasis in original).
159
Boyde v. California, 494 U.S. 370, 380 (1990).
160
Id. at 374 n.2 (quoting 1 CALIFORNIA JURY INSTRUCTIONS, Criminal
8.85(k) (5th ed. 1988)).
161
Weeks v. Angelone, 528 U.S. 225 (2000).
162
Id. at 228-29 (noting that the jury twice asked the trial court for clarification of the jury instructions).
163
Id. at 227-28.
164
Id.
165
Id.
166
Id. at 229.
167
Id. at 228-29 (emphasis in original). Earlier in their deliberations the
jury asked whether a sentence of life imprisonment included the possibility of parole. Id. The judge told them “not to concern yourselves” with
that matter. Id. While this issue was not the focus of the Court’s attention, the case is a further example of juror confusion over the meaning of
life sentences. The fact that the judge had already refused to answer a
jury question, significantly undercuts an argument Rehnquist advanced
that the jury would surely have continued asking and repeating questions
if it remained confused.
168
Id.
169
Id. at 227.
170
Weeks v. Angelone, 528 U.S. 225, 236 (2000).
171
Id. at 234.
172
Id. at 234-35. The Court noted that
[m]ore than two hours passed between the judge directing the jury’s attention to the appropriate paragraph of the instruction that answered its question
and the jury returning its verdict. We cannot, of
course, know for certain what transpired during
those two hours. But the most likely explanation is
that the jury was doing exactly what it was instructed
to do.
Id. at 235. However, it is also possible that the jury spent the two hours
arguing over their original question, resolved the matter incorrectly, and
swiftly proceeded to agree on a death sentence that they erroneously believed they were obligated to impose.
151
152
471 U.S. 307, 312 (1985) (majority opinion). Justice Rehnquist accused the Court of “piling syllogism on syllogism” instead of analyzing
the jury instructions as a whole. Id. at 332-33 (Rehnquist, J., dissenting).
174
Id. at 234.
175
Id. at 235-36.
176
Weeks v. Angelone, 528 U.S. 225, 243 (2000) (Stevens, J., dissenting)
(“By the Court’s logic, a rather exceptionally assertive jury would have
to question the judge at least twice and maybe more on precisely the
same topic before one could find it no more than ‘reasonably likely’ that
the jury was confused.”).
173
100
Id. at 243.
Id.
179
Even if the jury had asked the same question twice, Rehnquist would
have presumably asserted that something in the jury’s third reading of
the instructions had cleared the matter up for them, since, after all, they
did not ask the question yet again, and they continued deliberating for a
period of time (either briefly or extensively) which was consistent with
juror understanding. Weeks v. Angelone, 528 U.S. 225, 234-35 (2000)
(majority opinion).
180
Weeks v. Angelone, 528 U.S. 225, 248 (2000) (Stevens, J. dissenting).
181
Weeks v. Angelone, 528 U.S. 225, 236 n.5 (2000) (majority opinion).
182
Weeks v. Angelone, 528 U.S. 225, 238 (2000) (Stevens, J., dissenting).
183
Id.
184
Id. at 242.
185
Id. at 244.
186
Id.
187
Id. at 242.
188
Stephen P. Garvey et al., Correcting Deadly Confusion: Responding
to Jury Inquiries in Capital Cases, 85 CORNELL L. REv. 627 (2000).
189
Id. at 633-35.
190
Id.
191
Id.
192
Id.
193
Id.
194
Id. at 638.
195
Id. at 639.
196
Id. at 641-42 (finding that sixty-three percent of those who correctly
understood the obligation favored a life sentence for the defendant).
197
Francis v. Franklin, 471 U.S. 307, 331 (1985) (Rehnquist, C.J., dissenting).
198
Boyde v. California, 494 U.S. 370, 380 (1990).
199
Kevin M. O’Neil et al., Exploring the Effects of Attitudes toward the
Death Penalty on Capital Sentencing Verdicts, 10 PSYCHOL. PUB. POL’Y
& L. 443(2004).
200
Benjamin Steiner et al., Folk Knowledge as Legal Action: Death
Penalty Judgments and the Tenet of Early Release in a Culture of Mistrust and Punitiveness, 33 L. & SOC’Y REv. 461(1999).
201
Gregg v. Georgia, 428 U.S. 153, 190 (1976).
202
California v. Ramos, 463 U.S. 992 (1983).
203
Simmons v. South Carolina, 512 U.S. 154 (1994).
204
Shafer v. South Carolina, 532 U.S. 36 (2001).
205
Kelly v. South Carolina, 534 U.S. 246 (2002).
206
See, e.g., supra note 167 and accompanying text (noting that the trial
court in Weeks v. Angelone, 528 U.S. 225 (2000), instructed the jury that
it should not concern itself with whether defendant would have the possibility of parole if given a life sentence).
207
Simmons, 512 U.S. at 157.
208
Id. at 160-61 (noting that the jury’s sole question during two hours of
deliberation was about petitioner’s eligibility for parole).
209
Id. at 156-57.
210
Id. at 161.
211
Id. at 163.
212
Id. at 159.
213
Id.
214
Simmons v. South Carolina, 512 U.S. 154, 160 (1994)
215
Id. at 160.
216
As Justice Blackmun stated, “[i]t almost goes without saying that, if
the jury in this case understood that the ‘plain meaning’ of ‘life imprisonment’ was life without parole in South Carolina, there would be no
reason for the jury to inquire about petitioner’s parole eligibility.” Id. at
170 n.10.
217
Id. at 165-66.
218
Id. at 170.
219
Id. at 160. Interestingly, the judge’s instructions were clear on the
definition of the death sentence: “by the death penalty, we mean death by
177
178
Winter 2009
electrocution.” Id. at 157 n.1.
220
Simmons, 512 U.S. at 181 (Scalia, J., dissenting).
221
Id. at 184.
222
Id. at 182.
223
Id. at 183 (emphasis added).
224
There is a certain logical similarity between this point, and one Scalia
advances in Powers v. Ohio, 499 U.S. 400, 417-23 (1991) that the exclusion of African Americans from juries was fair because whites or any
other group could theoretically be excluded. In essence, any limitation
that applies in both directions must be fair, even if one direction is frequently pursued and the other never sought.
225
Simmons v. South Carolina, 512 U.S. 154, 185(1994) (Scalia, J., dissenting). How a death sentence could be unquestionably constitutional
when the Constitution itself vaguely bars “cruel and unusual punishment” is difficult to fathom. Even if Scalia objects to relying upon “current and temporary” national consensus to define cruel and unusual
punishment, his position requires him to assert that regardless of future
conditions, opinions, mores, or practices death sentences can never become cruel and unusual.
226
Shafer v. South Carolina, 532 U.S. 36 (2001).
227
Id. at 44.
228
Id. at 40.
229
Id. at 53.
230
Id. at 56 (Thomas, J, dissenting).
231
Shafer, 532 U.S. at 57 (Thomas, J, dissenting).
232
Id. at 57.
233
Kelly v. South Carolina, 534 U.S. 246 (2002).
234
Id. at 250.
235
Id. at 249.
236
Id. at 256.
237
Id. at 250.
238
Kelly, 534 U.S. at 253.
239
Id. at 260 (Rehnquist, C.J., dissenting).
240
Id. at 262.
241
California v. Ramos, 463 U.S. 992 (1983).
242
Id. at 1012.
243
Id. at 1009.
244
Id. at 1004 n.19.
245
Id.
246
Id. at 1016 (Marshall, J., dissenting).
247
Id. at 1030 (Stevens, J., dissenting).
248
Lowenfield v. Phelps, 484 U.S. 231 (1988).
249
Id. at 249.
250
Id.
251
Id. at 235.
252
Id. at 240-41.
253
Buchanan v. Angelone, 522 U.S. 269, 277 n.4 (1998).
254
See Wiener et al., Guided Jury, supra note 4.
255
Simmons v. South Carolina, 512 U.S. 154, 172 (1994) (Souter, J.,
concurring).
256
Id. at 173.
257
Weeks v. Angelone, 528 U.S. 225, 242 (2000) (Stevens, J., dissenting).
258
Id. at 242 (Stevens, J., dissenting).
259
Buchanan, 522 U.S. at 283 (Breyer, J., dissenting).
260
See Frank & Applegate, supra note 50.
261
Id.
262
See, e.g., Wiener et al., Comprehensibility, supra note 55.
263
See Wiener et al., Guided Jury, supra note 4.
264
Id.
265
Id.
266
Id.
267
Adams v. Texas, 448 U.S. 38, 45 (1980).
268
Witherspoon v. Illinois, 391 U.S. 510, 521 (1968).
269
See Brooke Butler, The Role of Death Qualification in venirepersons’
Evaluations of Aggravating and Mitigating Circumstances in Capital Tri-
Criminal Law Brief
als (2000) (Ph.D. dissertation, Florida International University); James
Luginbuhl & Kathi Middendorf, Death Penalty Beliefs and Jurors’ Responses to Aggravating and Mitigating Circumstances in Capital Trials,
12 L. & HUM. BEHAv. 263, 267 (1988) (suggesting that some potential
jurors respond more to aggravating circumstances, while others respond
more to mitigating circumstances).
270
Robert Young, Guilty until Proven Innocent: Conviction Orientation,
Racial Attitudes, and Support for Capital Punishment, 25 DEvIANT
BEHAv. 151 (2004).
271
Id.
272
Claudia Cowan, William Thompson & Phoebe Ellsworth, The Effects
of Death Qualification on Jurors’ Predisposition to Convict and on the
Quality of Deliberation, 8 L. & HUM. BEHAv. 53, 59-60 (1984) (noting
that homogenous juries, or those juries consisting of individuals with
similar views on issues like the death penalty, are less likely to function
in the way that courts would like them to).
273
Michele Cox & Sarah Tanford, An Alternative Method of Capital Jury
Selection, 13 L. & HUM. BEHAv. 167 (1989); Robert J. Robinson, What
does “Unwilling” to Impose the Death Penalty Mean Anyway?: Another
Look at Excludable Jurors, 14 L. & HUM. BEHAv. 471, 475 (1993) (finding that only 1.1% of jurors in the study absolutely “refused” to consider
the death penalty in any case, whereas the remaining 98.9% were willing
to consider the death penalty in at least one case).
274
Mike Allen, Edward Mabry & Drue-Marie McKelton, Impact of Juror
Attitudes about the Death Penalty on Juror Evaluations of Guilt and
Punishment: A Meta-Analysis, 22 L. & HUM. BEHAv. 715. 725 (1998)
(indicating that “death-qualified voir dire practices produce jurors more
likely to render guilty verdicts,” and thus more likely to impose death).
275
Joseph Filkins, Christine Smith & R. Scott Tindale, An Evaluation of
the Biasing Effects of Death Qualification: A Meta-Analytic/Computer
Simulation Approach, in THEORY AND RESEARCH ON SMALL GROUPS 153
(R. Scott Tindale et al. eds., 1998).
276
William Thompson et al., Death Penalty Attitudes and Conviction
Proneness: The Translation of Attitudes into Verdicts, 8 L. & HUM.
BEHAv. 95, 100-102, 106 (1984) (contrasting testimony of white police
officer that defendant, who was black, behaved belligerently with the
same defendant’s testimony the police officer was unnecessarily abusive,
and then asking test subjects to consider 16 possible verdicts). Four verdicts were correct, and twelve erroneous, with six of those twelve erroneous acquittals or lenient verdicts, and the other six erroneous
convictions or overly harsh convictions. Id. at 106.
277
Id. at 106-09.
278
Ronald Dillehay & Marla Sandys, Life under Wainwright v. Witt:
Juror Dispositions and Death Qualification, 20 L. & HUM. BEHAv. 147
(1996). Indeed, many jurors found qualified to serve on capital cases are
apt to demonstrate not mere acceptance of the death penalty, but enthusiasm. In Miller-El v. Dretke, Thomas quoted one juror (Mr. Woods)
whose only reservation regarding the death penalty was that it could be
“too quick.” 545 U.S. 231, 290 (2005) (Thomas, J., dissenting). Instead
the juror would “[p]our some honey on them and stake them out over an
ant bed.” Id. As Thomas noted, “[i]t is beyond cavil why the State accepted Woods as a juror: He could impose the punishment sought by the
State.” Id.
279
Adams v. Texas, 448 U.S. 38 (1980). Adams’ case was brought to the
nation’s attention in the documentary, The Thin Blue Line, which presented significant evidence suggesting Adams was uninvolved in the
murder for which he was sentenced to death. THE THIN BLUE LINE
(American Playhouse 1988). Adams’ conviction was overturned in 1989
and prosecutors did not seek to try him again. See Ex parte Adams, 768
S.W.2d 281 (Tex. Crim. App. 1989); Northwestern Law Blum Legal
Clinic, Center on Wrongful Convictions, Randall Dale Adams,
http://www.law.northwestern.edu/wrongfulconvictions/exonerations/txAdamsSummary.html (last visited Mar. 28, 2009) (noting that the Dallas
District Attorney “dropped all charges” against Adams shortly after the
Court of Criminal Appeals found that Adams was entitled to a new trial).
280
Adams, 488 U.S. at 52.
101
Id. at 45.
Id. at 50-1.
283
Id. at 50.
284
Id. at 48.
285
Adams, 488 U.S. at 54 (Rehnquist, J., dissenting).
286
Id. at 55.
287
Lockhart v. McCree, 476 U.S. 162 (1986).
288
Id. at 173.
289
Id. at 177.
290
Id. at 167.
291
Id. at 168.
292
Id. at 171 (quoting Witherspoon v. Illinois 391 U.S. 510, 517-518
(1968)).
293
Lockhart, 476 U.S. at 189 (Marshall, J., dissenting).
294
Id. at 174.
295
Id. at 174.
296
Id. at 178.
297
Id.
298
Id.
299
Id. at 184 (Marshall, J., dissenting).
300
Lockhart, 476 U.S. at 189 (Marshall, J., dissenting).
301
Id. at 206.
302
Gray v. Mississippi, 481 U.S. 648 (1987).
303
Id. at 651.
304
Id. at 665.
305
Id. at 653.
306
Id. at 654.
307
Id. at 656 n.7.
308
Id. at 663.
309
Id. at 668.
310
Gray, 481 U.S. at 678 (Scalia, J., dissenting) (emphasis in original).
311
Id. at 678.
312
Id.
313
Id.
314
Id.
315
Gray, 481 U.S. at 654. Indeed, the state admitted there was no law
supporting the capacity of a judge to grant an additional peremptory
challenge. In the few documented occurrences when an additional
peremptory challenge was granted, both sides received an equal number
of additional challenges. Id.
316
Ross v. Oklahoma, 487 U.S. 81, 83 (1988).
317
Id. at 85.
318
Id.
319
Gray, 481 U.S. at 665.
320
Ross, 487 U.S. at 87.
321
Id. at 88.
322
Id. at 90-91. Further, Rehnquist noted, “Because peremptory challenges are a creature of statute and are not required by the Constitution,
it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As
such, the ‘right’ to peremptory challenges is ‘denied or impaired’ only if
the defendant does not receive that which state law provides.” Id. at 89.
323
Id. at 90.
324
Id. at 89.
325
Id. at 90.
326
Ross, 487 U.S. at 85.
327
Id. at 86.
328
Ross, 487 U.S. at 91 (Marshall, J., dissenting).
329
Id. at 92-3.
330
Id. at 94.
331
Morgan v. Illinois, 504 U.S. 719 (1992).
332
Ross, 487 U.S. at 85.
333
Morgan, 504 U.S. at 729.
334
Id. at 733.
335
Id. at 734.
336
Ross, 487 U.S. at 85.
281
282
102
Morgan v. Illinois, 504 U.S. 719, 739 (1992) (Scalia, J., dissenting).
Id. at 751 (emphasis in original).
339
Id. at 741.
340
Id. at 744 (emphasis added).
341
Id. at 745.
342
Id. at 751 (“What constitutes mitigation is not defined and is left up to
the judgment of each juror.”).
343
720 ILL. COMP. STAT. 5/9-1 (1990).
344
Morgan, 504 U.S. at 751 (Scalia, J., dissenting).
345
Id. at 736.
346
Id. at 738.
347
DAvID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI,
EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL
ANALYSIS (Northeastern Univ. Press 1990).
348
Thomas Keil & Gennaro vito, The Effects of the Furman and Gregg
Decisions on Black-White Execution Ratios in the South, 20 J. CRIM.
JUST. 217 (1992).
349
Michael Radelet, Executions of Whites for Crimes against Blacks, 30
SOC. Q. 529 (1989).
350
Mona Lynch, Defendant/victim Race, Juror Comprehension, and
Capital Sentencing: An Experimental Approach (1997) (Ph.D. dissertation, University of California, Santa Cruz); Mona Lynch & Craig Haney,
Discrimination and Instructional Comprehension: Guided Discretion,
Racial Bias, and the Death Penalty, 24 L. & HUM. BEHAv. 337 (2000);
Edelman, supra note 61.
351
Strauder v. W. virginia, 100 U.S. 303, 308 (1880).
352
Id. at 309.
353
Id. at 308.
354
Batson v. Kentucky, 476 U.S. 79 (1986). .
355
Id. at 85-86.
356
Id. at 89.
357
In a concurring opinion, Marshall argued that prosecutors will almost
always be able to advance some kind of explanation for employing
peremptory challenges against African Americans, even if the explanation is false. Id. at 102-08 (Marshall, J., concurring). “How is the court
to treat a prosecutor’s statement that he struck a juror because the juror
had a son about the same age as defendant, or seemed ‘uncommunicative,’ or ‘never cracked a smile’ and, therefore ‘did not possess the sensitivities necessary to realistically look at the issues and decide the facts in
this case.’ If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial
grounds, then the protection erected by the Court today may be illusory.”
Id. at 106. Ultimately, Marshall concluded, “The decision today will not
end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating
peremptory challenges entirely.” Id. at 102-103.
358
Id. at 137 (Rehnquist, J., dissenting).
359
Id. at 139.
360
Id. at 138-139. Rehnquist offered a similar defense of efforts to remove women from the jury. In his dissent in J.E.B. v. Alabama, Rehnquist reiterated that there is a rational basis for sex based jury exclusion:
“I think the State has shown that jury strikes on the basis of gender ‘substantially further’ the State’s legitimate interest in achieving a fair and
impartial trial.” 511 U.S. 127, 156 (1994).
361
Holland v. Illinois, 493 U.S. 474 (1990). .
362
Id. at 482 (emphasis in original).
363
Id. at 480.
364
Id. at 484.
365
Id. at 484.
366
Id. at 478. In his dissent in J.E.B. v. Alabama, Scalia added that
peremptory challenges were “an essential part of fair jury trial since the
dawn of common law.” 511 U.S. 127, 163 (1994) (Scalia, J., dissenting).
To limit challenges in any way would be “vandalizing our people’s traditions.” Id.
367
Holland v. Illinois, 493 U.S. 474, 483 (1990) (emphasis added).
368
Adams v. Texas, 448 U.S. 38, 55 (1980) (Rehnquist, J., dissenting).
337
338
Winter 2009
Holland, 493 U.S. at 486-487.
Id. at 479.
371
Id. at 493 (Marshall, J., dissenting).
372
Id. at 506 (Stevens, J., dissenting).
373
Id. at 502 (Marshall, J., dissenting). Scalia is dismissive of Marshall’s
conclusion: “JUSTICE MARSHALL’s dissent rolls out the ultimate
weapon, the accusation of insensitivity to racial discrimination - which
will lose its intimidating effect if it continues to be fired so randomly.”
Id. at 486.
374
Powers v. Ohio, 499 U.S. 400 (1991). .
375
Id. at 409.
376
Id.
377
Unlike Rehnquist’s conclusion in Duren that jury service was “time
consuming” and “useless,” the majority in Powers spoke of it in valued
terms. “Discriminatory use of peremptory challenges harms the excluded jurors and the community at large” by depriving them of a “a significant opportunity to participate in civic life.” Powers v. Ohio, 499
U.S. 400, 406, 409 (1991). “Indeed, with the exception of voting, for
most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.” (Id. at 407).
378
Id. at 429 (Scalia, J., dissenting).
379
Strauder, 100 U.S. at 303.
380
Id. at 417 (Scalia, J., dissenting).
381
Holland v. Illinois, 493 U.S. 474, 486-87 (1990).
382
Powers, 499 U.S. at 424. (Scalia, J., dissenting). In a related point,
Rehnquist has advanced the notion that if you subscribe to notions of
equality, you must understand the exclusion of any particular group from
a jury to be irrelevant. That is, when the Court argues women and men
are equal, Rehnquist reasons such equality eliminates any need for their
fair representation. “If, then, men and women are essentially fungible
for purposes of jury duty, the question arises how underrepresentation of
either sex on the jury or the venire infringes on a defendant’s right to
have his fate decided by an impartial tribunal.” Duren v. Missouri, 439
U.S. 357, 371 (1979) (Rehnquist, J., dissenting).
383
Id. at 410.
384
Id. at 424 (Scalia, J., dissenting).
385
Id. at 425.
386
Id. at 425.
387
Id. at 425.
388
Id. at 426 (emphasis in original).
389
Miller-El v. Cockrell, 537 U.S. 322 (2003).
390
Id. at 341.
391
Id. at 332 (noting that African Americans were told the following:
“Thomas Joe Miller-El will be taken to Huntsville, Texas. He will be
placed on death row and at some time will be taken to the death house
where he will be strapped on a gurney, an Iv put into his arm and he will
be injected with a substance that will cause his death.”).
392
Id. at 345.
393
Id. at 335.
394
Miller-El v. Cockrell, 537 U.S. 322, 360 (2003) (Thomas, J., dissenting).
395
Id. at 364.
396
Id. at 365.
397
Id. at 368 n.15.
398
Beyond the overall pattern discerned, the prosecution’s position that
race was not a factor in their behavior was undermined by repeated misstatements and misrepresentations. Most blatantly, when asked why the
race of potential jurors was noted by prosecutors on their pre-trial
records: “The State claimed at oral argument that prosecutors could have
been tracking jurors’ races to be sure of avoiding a Batson violation.
Batson, of course, was decided the month after Miller-El was tried.”
Miller-El v. Dretke, 545 U.S. 231, 265 n.38 (2005).
399
Breyer, in a concurring opinion, agreed that race was the basis for the
prosecution’s use of peremptory challenges. Id. at 267-70 (Breyer, J.,
concurring) (citing a number of studies and cases that indicate the prevalence of race as a factor in peremptory challenges). Breyer, harkening
369
370
Criminal Law Brief
back to Marshall’s concurrence in Batson, questioned whether it was
possible to achieve a peremptory challenge system free from the infection of race. Id. at 272. Breyer noted that despite the Batson ruling,
there was no shortage of social science evidence that race continues to be
a potent factor in jury selection, indeed “the use of race- and genderbased stereotypes in the jury-selection process seems better organized
and more systematized than ever before.” Id. at 270. Numerous studies
have shown prosecutors to be twice as likely to strike African Americans
as whites, and defense attorneys twice as likely to strike whites as
African Americans. Id. at 268-69. Indeed, Breyer found several popular
guides to jury selection used by attorneys which highlighted race as a
factor in predicting a juror’s value. Id. at 269-72. Breyer concluded,
“[i]f used to express stereotypical judgments about race, gender, religion,
or national origin, peremptory challenges betray the jury’s democratic
origins and undermine its representative function” thus “I believe it necessary to reconsider Batson’s test and the peremptory challenge system
as a whole.” Id. at 272-73.
400
As Marshall warned in his Batson concurrence, deference to the post
hoc explanations (e.g., “he never cracked a smile”) of prosecutors would
produce a litany of intangible distinctions which by their very nature
could never be disproved. Batson v. Kentucky, 476 U.S. 79, 106 (1986)
(Marshall, J., concurring).
401
Miller-El v. Dretke, 545 U.S. 231, 293 (2005) (Thomas, J., dissenting).
402
Id. at 262 n.35 (majority opinion) (noting Crowson’s unwillingness to
impose the death penalty “if there was a chance at rehabilitation).
403
Id. at 293 (Thomas, J., dissenting).
404
Brief of Respondent at 20 n.11, 24 n.15, Miller-El v. Dretke, 545 U.S.
231 (2005) (No. 03-9659), 2004 WL 2446199.
405
Duren v. Missouri, 439 U.S. 357, 376 (1979) (Rehnquist, J., dissenting).
406
Holland v. Illinois, 493 U.S. 474, 482 (emphasis added).
407
Powers v. Ohio, 499 U.S. 400, 425 (Scalia, J., dissenting).
408
Id. at 425 (Scalia, J., dissenting).
409
Batson, 476 U.S. at 137 (Rehnquist, J., dissenting).
410
Ross v. Oklahoma, 487 U.S. 81, 89 (1988).
411
Id. at 88.
About the Authors
.
Kenneth W. Miller received a J.D. from the University of Arizona's College of Law and currently
teaches in the School of Justice & Social Inquiry at
Arizona State University. His research on the death
penalty, legal globalization, and white collar crime
has appeared in numerous law reviews and scholarly journals.
David Niven is the author of four scholarly books
including The Politics of Injustice: The Freedom
Rides, the Kennedys, and the Electoral Consequences of a Moral Compromise (University of
Tennessee Press). His research on the death penalty
has appeared in Social Science Quarterly and other
scholarly journals. Niven (Ph.D., Ohio State University) joins the faculty of Wright State University
in 2009.
103
Fight Fire with Fire: The ICC Should Be More Aggressive in
Pursuing Crimes of Sexual Violence
student editoriAl
by Meredith owen
T
homas Lubanga, leader of a militia group supported by Uganda, has been charged with
committing mass war crimes and crimes
against humanity in the Democratic Republic
of the Congo (DRC).1 During the civil war, Lubanga
conscripted child soldiers into his militia, using young
girls as sexual slaves.2 Carine Bapita, who represents
five of the victims in the case against Lubanga at the International Criminal Court (ICC), described how “rape
began as soon as they were abducted,”
and “[s]ome were tortured.”3 In addition to crimes committed against children, Lubanga allegedly ordered and
committed systematic rapes, sexual torture, and mass murder.4
International criminal law is the
primary mechanism to prosecute individuals and to hold such individuals accountable for their most serious crimes,
including sexual violence.5 Prosecutors
at the ICC are charged with the responsibility to investigate and charge perpetrators.6 Yet, international criminal law
has been slow to take up the fight
against sex-based crimes.7
Some progress has been made. Examples of
progress include the creation of international human
rights laws targeting gendered crimes,8 the 1981 United
Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW),9 and the
Geneva Conventions forbidding sexual violence as a
tool or result of conflict.10 Despite this progress, however, there have been few international prosecutions for
sexual violence against women.11
Sexual abuse against women, such as rape, sexual slavery, and mutilation, is often used during armed
conflict both as a tool to humiliate and eradicate the opponent and to demonstrate heightened feelings of power
and control.12 Although sexual violence may be regarded as an inherent characteristic of war, the ICC
holds individuals culpable for these gendered crimes.13
104
At the ICC, rape is defined as:
The perpetrator invaded the body of a
person by conduct resulting in penetration, however slight, of any part of the
body of the victim . . . (2) The invasion
was committed by force, or by threat of
force or coercion, such as that caused by
fear of violence, duress, detention, psychological oppression or
abuse of power, against such
person or another person...14
This definition can also be found
as a crime against humanity (art.
7(1)(g)-1) if the conduct was part of
a widespread or systematic attack
against a civilian population and the
perpetrator knew the conduct was
part of the widespread or systematic
attack against a civilian population.15 Additionally, sexual slavery
and rape can be considered a war
crime if it was “committed with the
intent to destroy, in whole or in part,
a national, ethnical, racial or religious group.”16 While
it is true that the ICC is currently investigating sexual
abuses,17 the ICC’s commitment to rigorously investigating, prosecuting, and convicting sexual violence offenders is questionable.
This Editorial will first
discuss ICC cases, in which the Office of the Prosecutor
(OTP) or Pre-Trial Chamber failed to bring or dropped
charges of sexual violence crimes against women.
Then, it provides the rationales proffered by ICC prosecutors and judges for their failure to pursue these violent crimes, as well as critiques of those rationales by
international human rights organizations. Finally, it
compares the ICC’s passive approach to crimes of sexual violence to the aggressive nature of anti-sexual violence criminal laws in the United States. This Editorial
will conclude that the ICC should continue the recent
trend of increasing the investigation and prosecution of
Winter 2009
crimes of sexual violence as in the U.S.
iCC’s FAilure to rigorously Pursue
individuAls who CoMMit CriMes
oF sexuAl violenCe
Both the International Criminal Tribunal for the
Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) failed to rigorously
prosecute war criminals who committed sexual violence
in connection to the armed conflicts.18 The purpose of
the ICTY and ICTR was to promptly prosecute the worst
of the war criminals for the most serious crimes.19 However, Amnesty International reported that “[d]espite extensive documentation by women’s groups,
non-governmental organizations and NATO of rape and
other crimes of sexual violence committed on a large
scale during the conflict in Kosovo . . . it appears that
there had, up to April 2007[,] been only one indictment
including a charge of rape or sexual violence as a war
crime or crime against humanity.”20 Explaining why
there were few indictments for sexual violence against
women, judges at the ICTY specifically cited lack of
time and resources to effectively investigate, prosecute,
and convict state and non-state actors under the criminal
liability doctrine of command responsibility.21 Rather
than prosecuting the cases themselves, the ICTY and
ICTR left cases of sexual violence and other sensitive
cases for domestic courts.22
The ICC increased investigation and prosecution
of sexual violence crimes, largely in response to the failure of international criminal law, in general, to effectively confront sexual violence as part of armed conflict,
and more specifically in response to the failure of the
ICTY and ICTR to prosecute the crimes.23 The ICC thus
far has investigated violations of international criminal
law arising in countries facing conflict or post-conflict
difficulties, such as the Democratic Republic of the
Congo (DRC), the Central African Republic (CAR),
Uganda, and Darfur, Sudan.24
Despite documented widespread sexual violence
against women occurring in armed conflicts around the
world, the ICC has only sought a limited number of sexual slavery and rape charges. So far, the ICC has indicted thirteen men for a variety of crimes.25 In the
DRC, the ICC has charged four men, including
Lubanga, for international criminal violations.26 The
OTP, however, failed to bring charges against Lubanga
for sexual slavery or rape.27 Two other leaders, Germain
Katanga, the alleged commander of the Force de RésisCriminal Law Brief
tance Patriotique en Ituri (FRPI), and Mathieu Ngudjolo
Chui, the alleged former leader of the Front des Nationalistes et Intégrationnistes (FNI),28 were originally
charged with sexual violence crimes, including sexual
slavery and rape both as a war crimes and crimes against
humanity.29 Fearing for the safety of the witnesses of
the crimes, the OTP thought it necessary to drop the sexual violence charges against the two leaders.30 However,
once the witnesses to the sexual slavery and rape were
placed in the ICC witness protection program, the OTP
re-introduced the sexual violence charges.31
The ICC has included sexual violence crimes as
part of the indictment against several criminals from the
CAR, Uganda, and Darfur.32 The OTP has charged three
men from the Darfur conflict with rape and sexual slavery, including the head of state of Sudan, Omar al
Bashir.33 Additionally, the ICC brought sexual slavery
and rape charges against Joseph Kony for crimes committed in Uganda.34 Finally, the OTP brought charges
of rape as a war crime and a crime against humanity
against Jean-Pierre Bemba Gombo in connection to the
crimes committed in the Central African Republic.35
These men, however, remain at large, and their cases are
pending.36
rAtionAle For FAilure to Aggressively Pursue
sexuAl violenCe ChArges And Critiques by
internAtionAl legAl sCholArs
Prosecutors at the ICC argue that factors, such
as lack of time, resources, and evidence, account for few
charges brought against few individuals.37 According
to the OTP, the ICC dropped charges of sexual violence
in 2008 against Ngudjolo and Katanga due to a lack of
evidence and time to investigate these crimes.38 Even
though the ICC dropped the charges, prosecutors and investigators maintained that the OTP felt it important to
investigate sexual violence charges against both
Katanga and Ngudjolo, and gathered evidence from the
field demonstrating that sexual slavery and rape took
place during at least one specific attack in 2003.39 The
OTP claims that even more sexual violence charges, including forced marriage and sexual mutilation, may be
brought against offenders still at large.40
In the cases of Katanga and Ngudjolo, the PreTrial Chamber concluded that witnesses to and victims
of the sexual crimes lacked protection, and accordingly
the OTP placed the victims and witnesses in the ICC
Witness Protection Program (ICCPP).41 Despite the ar105
gument that this protection would effectively allow wit- Bemba, who faces charges of rape and torture as a crime
nesses to testify, one judge still disagreed with the rein- against humanity and war crime.55
statement of charges for sexual slavery against Katanga
In response to the ICC’s explanations for their
42
and Ngudjolo. The judge argued that there was insuf- failure to vigorously pursue sexual violence charges,
ficient evidence to support the reinstatement of charges human rights organizations argue that complicity is conbecause there were no “substantial grounds to believe” doning the practice.56 These critics question why the
that Katanga and Ngudjolo intended to sexually enslave ICC did not include sexual violence charges against
or rape the victims or that they knew or should have Lubanga of the DRC, where girls were kidnapped,
known about the crimes.43 Instead, the judge asserted forced into Lubanga’s militia, and endured numerous
that the evidence suggested that
rapes and prolonged sexual slavthe defendants punished those
ery.57 Further, the ICC failed to
At
the
ICC,
the
elements
44
who committed the crimes.
charge Lubanga with rape and
Still, the OTP reinstated charges
sexual slavery in the face of
of rape are difficult to
of sexual slavery and rape over
ample evidence of such crimes.58
prove
without
witness
the judge’s objection due to the
Both Amnesty International and
placement of the victims and
testimony, and the social Human Rights Watch reported
witnesses into the ICC victims
that ICC investigators found
stigma of rape prevents widespread cases of rape against
and Witnesses Unit of the Registry (vWU), the ICCPP.45
women as young as eleven years
many witnesses from
Even though the ICC
old committed under Lubanga’s
coming
forward,
leading
has been more aggressive than
authority, while other women
the ICTY and ICTR in prosewere captured and held as sexual
to few convictions.
cuting sexual violence crimes,
slaves for militiamen.59 Although investigators managed to
the ICC has similarly limited
investigations and prosecutions of sexual violence put together witness testimony, many victims of sexual
crimes.46 At the ICC, the elements of rape are difficult violence were killed after their attacks, eliminating any
to prove without witness testimony,47 and the social possibility that the women could testify.60
The evidence illustrates that Lubanga’s troops
stigma of rape prevents many witnesses from coming
48
forward, leading to few convictions. Further, to expe- committed crimes against humanity. It was a widedite cases, the OTP brings fewer charges for faster con- spread attack against the female civilian population.61
victions.49 Procedural rules refer the OTP investigation The abuses could also be tried as a war crime because
findings to the Pre-Trial Chamber so that the judges may they were gendered crimes and committed as part of a
determine whether there is enough evidence to support policy or large-scale commission in the context of an ina conviction against a defendant at trial.50 In the case ternational armed conflict, and Lubanga was aware of
of Lubanga, the Prosecutor’s decision to expedite the the crimes.62
Despite the systematic sexual violence against
case by limiting the number of charges ultimately de51
feated any sexual violence charge . The Prosecutor civilian women and over 12,500 female child soldiers
contended there was insufficient evidence to show that forced into the militia, the OTP dropped charges of sexLubanga held command responsibility for the rapes and ual violence, including sexual slavery as a war crime
acts of sexual slavery, and therefore decided not to pro- and crime against humanity, against Katanga and Ngudceed with charges of sexual violence.52
jolo “after a Pre-Trial Chamber judge excluded the stateThe ICC claims that it continues to investigate ments of witnesses supporting those charges on the
sexual violence crimes against other offenders from the grounds that the witnesses were not adequately proCAR, Uganda, and Darfur.53 In fact, the OTP contends tected.”63 Subsequently, the OTP managed to reinstate
that the ICC is making great strides in the adjudicating the charges after witnesses were put into the ICC Witsexual violence in these states by bringing more charges ness Protection Program.64
One problematic inequity in international crimagainst the alleged criminals and especially against the
Sudanese President Omar al-Bashir for rape.54 In CAR, inal law, according to human rights organizations, is that
many more will face charges for sexual violence, such female child soldiers lose out on crimes against humanas the former vice-President of the DRC, Jean-Pierre ity protections because, although they are often victims
106
Winter 2009
of widespread or systematic sexual slavery and rape, female child soldiers are not victims of crimes committed
against a “civilian” population.65 Although the criminals who enslave female child soldiers could be tried for
sexual violence as a war crime, the Rome Statute does
not criminalize the “use of children indirectly in armed
conflicts, which disproportionately affects girls typically
used in these ways.”66
Critics argue that the United Nations Security
Council, when establishing the ICC, acknowledged sexual enslavement and rape as inherent to “military operations,” and, therefore, the U.N. provides impunity to
offenders.67 ICC critics also argue that by failing to
charge offenders with sexual violence, the ICC is acquiescing to the belief that sexual violence is a natural result of armed conflict.68 They contend that international
human rights, humanitarian, and criminal law provisions
are “inadequate and, moreover, that the law of armed
conflict incorporates a gendered hierarchy in the sense
that the rules dealing with women are regarded as less
important than others and their infringement is not taken
as seriously.”69 These critics suggest that a Women’s
Convention on the law of armed conflict is necessary to
illustrate the severity of these crimes and that the convention would demonstrate that the ICC could effectively prosecute sexual violence offenders.70
Critics also argue that international criminal law
has been developed with an androcentric bias.71 Specifically, the ICC’s Rome Statute illustrates a “prosecutorial strategy of selective justice and efficient
procedure.”72 Society has developed international law
that reflects the male experiences without considering
the needs of or violence against women.73
Furthermore, critics argue, that domestic criminal law regimes are ineffective in prosecuting sexual violence. For example, women from the DRC live in a
state without effective rule of law mechanisms, and gender-bias in the judicial process is prevalent.74 Although
ICC prosecutors recognize the difficulty in gathering
witness statements in these situations, it is more difficult
for victims to testify in national courts when they are
forced to confront their attackers in a public forum and
when domestic law enforcement officers discourage
bringing claims of sexual violence.75 Instead, the ICC
should take the reins in adjudicating these sensitive
cases, while protecting victims in the Witness Protection
Program.76 Because domestic courts will likely fail to
pursue sexual violence claims, the ICC’s should continue its recent increased vigor in bringing sexual violence charges and add sexual violence charges in
Criminal Law Brief
pending cases, such as the Lubanga case.
while the united stAtes hAs FAiled to exert
Pressure on the iCC to ProseCute
sexuAl violenCe oFFenders, its doMestiC
CriMinAl JustiCe systeM serves As An
exAMPle oF Aggressive sexuAl violenCe
ProseCution
The United States refuses to consent to ICC jurisdiction, yet it continues to advocate for the adjudication of human rights abuses in national and international
courts.77 The U.S. failure to consent to ICC jurisdiction
does not illustrate its complicity with sexual violence
crimes, but rather its fear of ICC encroachment on
American sovereignty.78 However, international organizations, such as Amnesty International, continue to
question the U.S. commitment to promoting peace and
preventing conflict and wonder if, without U.S. support,
the United Nations and ICC can effectively hold individuals accountable for international crimes.79
Still, U.S. rape and sexual violence laws illustrate an aggressive posture towards the prosecution of
sexual violence criminals.80 Since the feminist advocacy of the 1960s, law reforms shifted the way U.S.
courts frame and adjudicate rape and domestic violence
cases.81 Much of this advocacy focused on changing the
historic perception of the passive female who is blamed
for the violent acts of others.82 Sexual violence, discrimination, and rape laws changed because feminist advocates were able to debunk theories that male power
inherently dominates women.83
U.S. sexual violence laws reformed through the
“creation of specific domestic violence offenses,” federal prosecution of offenders involving interstate activity, and the acknowledgment of self-defense for victims
of sexual violence.84 These reforms also targeted the social stigma against sexual violence victims by providing
shelters for psychological and medical recovery.85 In
addition to the criminalization of sexual violence
crimes, U.S. statutes reformed anti-discrimination and
tort laws to provide women with civil remedies.86 U.S.
laws further protect victims by attempting to prevent violence before it occurs, exemplified by sexual harassment statutes.87
Although they do not in a state of armed conflict,
sexual sadist cases may be factually similar to those that
arise in conflict zones. Sexual sadists utilize elements
of both torture and sexual violence, often resulting in
107
the rape, sexual enslavement, and death of the victim.88
For instance, in State v. Smith,89 the defendant, a diagnosed sexual sadist, raped, tortured, and murdered two
victims.90 The defendant was sentenced to death.91 Similarly, in People v. Guerra,92 the defendant was not clinically diagnosed with sexual sadism, but he nonetheless
received the death penalty for the attempted rape and
the murder of a woman.93 A significant number of other
cases, including State v. Ross94 and People v. Lindsay,95
resulted in the death penalty and other severe sentences
for the perpetrators of sexual violence. As demonstrated
by these cases, the laws, courts, and public act in concert
to harshly condemn perpetrators of sexual violence
crimes.
ConClusion
Although the ICC was intended to respond to the
failures of past internationalized courts, it still has a long
way to go before it can be said that it has aggressively
pursued crimes of sexual violence. The ICC’s commitment to vigorously pursuing charges of sexual violence
is questionable, as evidenced by the lack of, limited, or
dropped charges of sexual violence crimes against perpetrators like Lubanga. Critics contend that refusing to
investigate and prosecute sensitive cases involving rape
and sexual enslavement has led to impunity for the offenders. The ICC has responded to these criticisms by
reinstating sexual violence charges against Katanga and
Ngudjolo as well as by bringing charges of rape and sexual slavery against others indicted at the ICC. The reform of sexual violence laws in the United States
exemplifies an effective aggressive stance towards sexual violence, and the ICC should adopt this rigorous approach. Rigorous prosecution and conviction is
important because “[i]nternational criminal prosecution
works to end impunity for gender-based crimes, heightens the profile of gender-motivated violence in the international community, challenges gender relations and
hierarchies that perpetuate discriminatory practices, and
sets important precedents for future cases tried at the international level.”96
1
Nick Grono, The Role of the International Criminal Court in Peace
Processes: Mutually Reinforcing or Mutually Exclusive?, INTERNATIONAL
CRISIS GROUP, (2006),
http://www.crisisgroup.org/home/index.cfm?id=4552&l=1.
2
Id.
108
Rachel Irwin, Prosecutor Says Girls Used as Sex Slaves, THE LUBANGA
TRIAL, Jan. 26, 2009, http://www.lubangatrial.org/2009/01/26/prosecutor-says-girls-used-as-sex-slaves/.
4
Nick Grono, ICC’s Prosecutorial Strategy for 2007-2009, INTERNATIONAL CRISIS GROUP, (2006),
http://www.crisisgroup.org/home/index.cfm?id=4411&l=1.
5
Suzan M. Pritchett, Entrenched Hegemony, Efficient Procedure, or Selective Justice?: An Inquiry into Charges for Gender-Based Violence at
the International Criminal Court, 17 TRANSNAT’L L. & CONTEMP. PROBS.
265, 273-74 (2008) (suggesting that international law has lagged in holding individuals accountable for sexual violence crimes because of the
historic subjugation of women)..
6
See infra Part II (discussing conflict in African states and the ICC investigations).
7
See Pritchett, supra note 5, at 271-72 (noting that, until recently, international legal institutions have been lead by mostly Western men who
had maintained a focus on state sovereignty, political independence, territorial integrity, and legitimizing force, while ignoring the plight of
women in conflict).
8
Id. at 271.
9
Id.
10
Id. at 273.
11
Id.
12
See STOP vIOLENCE AGAINST WOMEN, SExUAL ASSAULT DURING ARMED
CONFLICT (2006),
http://www.stopvaw.org/Sexual_Assault_During_Armed_Conflict.html
(quoting various international legal scholars and institutions, which note
that sexual violence is often committed as a deliberate war strategy,
rather than for sexual pleasure).
13
See id. (arguing that sexual violence against women during armed conflict should be criminally punishable and not accepted as merely a characteristic of armed conflict).
14
Jonathan M.H. Short, Sexual Violence as Genocide: The Developing
Law of the International Criminal Tribunals and the International Criminal Court, 8 MICH. J. RACE & L. 503, 522 (2003).
15
Finalized Draft Text of the Elements of Crimes, Preparatory Comm’n
for the Int’l Crim. Ct., U.N. Doc. PCNICC/2000/1/Add.2, 12 (2000),
available at
http://www.iccnow.org/documents/ElementsofCrimeEng.pdf.
16
See Short, supra note 14, at 522 (citing art. 6 of the Rome Statute).
17
vICTIMS’ RIGHTS WORKING GROUP, ICC vICTIMS’ RIGHTS LEGAL UPDATE: 29 MAY TO 30 JUNE 2009 (2009),
http://www.redress.org/reports/June%202009%20Legal%20update.pdf.
18
Susana SáCouto, The Importance of Effective Investigation of Sexual
Violence and Gender-Based Crimes at the International Criminal Court,
17 AM. U. J. GENDER SOC. POL’Y & L. 337, 348 (2009).
19
See Pritchett, supra note 5, at 275 (noting that the ICTY and ICTR creation statutes both specified rape as an act that could constitute a crime
against humanity).
20
AMNESTY INTERNATIONAL, SERBIA (KOSOvO): THE CHALLENGE TO FIx A
FAILED UN JUSTICE MISSION 75 (2008), available at
http://www.unhcr.org/refworld/docid/47a0584a2.html.
21
Fourth ICC Arrest in the DRC Situation, INTERNATIONAL FEDERATION
FOR HUMAN RIGHTS, April 30, 2008, http://www.fidh.org/Fourth-ICC-arrest-warrant-in-the-DRC-situation.
22
SáCouto, supra note 18, at 344-46.
23
Id. at 338-39.
24
INTERNATIONAL CRIMINAL COURT, ALL CASES, http://www.icccpi.int/Menus/ICC/Situations+and+Cases/Cases/.
25
Id.
26
INTERNATIONAL CRIMINAL COURT, DEMOCRATIC REPUBLIC OF THE
3
Winter 2009
CONGO, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/ [hereinafter DRC].
27
Lisa Gambone, Failure to Charge: The ICC, Lubanga & Sexual Violence Crimes in the DRC, THE WORLD AFFAIRS BLOG NETWORK, July 22,
2009, http://warcrimes.foreignpolicyblogs.com/2009/07/22/failure-tocharge-the-icc-lubanga-sexual-violence-crimes-in-the-drc/.
28
DRC, supra note 26.
29
HUMAN RIGHTS WATCH, vICTIM AND WITNESS PROTECTION SUPPORT
(2008) [hereinafter vWP], available at
http://www.hrw.org/en/node/62135/section/10.
30
Gambone, supra note 27.
31
vWP, supra note 29.
32
DRC, supra note 26.
33
Id.
34
Id.
35
Id. at 340-41.
36
ALL CASES, supra note 24.
37
Katy Glassborow, International Criminal Court Investigative Strategy
under Fire: Sexual Violence in Congo, RADIO NEDERLAND WERELDOMROEP, Oct. 17, 2008,
http://static.rnw.nl/migratie/www.rnw.nl/internationaljustice/specials/co
mmentary/081017-IWPR-redirected.
38
Id.
39
Id.
40
Id.
41
vWP, supra note 29; see also COALITION FOR THE INTERNATIONAL
CRIMINAL COURT, KATANGA—NGUDJOLO CHUI CASE (2009),
http://www.iccnow.org/?mod=drctimelinekatanga (providing a timeline
of the Katanga case from indictment to trial, which commenced in October 2009).
42
INTLAWGRRLS, vAGARIES OF WITNESS PROTECTION BEFORE THE ICC
(2008), http://intlawgrrls.blogspot.com/2008/11/vagaries-of-witness-protection-before.html.
43
Id.
44
See id.
45
Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07,
victims and Witnesses Unit’s Considerations on the System of Witness
Protection and the Practice of “Preventive Relocation,” June 12, 2008, ¶
10.
46
See John D. Haskell, The Complicity and Limits of International Law
in Armed Conflict Rape, 29 B.C. THIRD WORLD L.J. 35, 62 (2009) (discussing how, despite extensive documented evidence of sexual violence,
the ICC has been reluctant to bring charges of sexual violence in DRC,
Uganda, and Sudan).
47
See id. at 55-56 (detailing the elements of “rape” under the Rome
Statute).
48
Id. at 75.
45
Pritchett, supra note 5, at 292-93.
49
Id. at 294.
50
Id. at 293.
51
Id..
52
ALL CASES, supra note 24.
53
Glassborow, supra note 37.
54
Id.
55
See Gambone, supra note 27 (contending that the belief that rape and
sexual violence are inherent to armed conflicts leads to complicity and
lack of prosecution for these gendered crimes).
56
SáCouto, supra note 18, at 341.
57
Gambone, supra note 27; and see generally WOMEN’S INITIATIvE FOR
GENDER JUSTICE, MAKING A STATEMENT: A REvIEW OF CHARGES AND
PROSECUTIONS FOR GENDER-BASED CRIMES BEFORE THE INTERNATIONAL
CRIMINAL COURT (2008), available at
Criminal Law Brief
http://www.iccwomen.org/news/docs/MakingAStatement-Web_Final.pdf
(describing atrocities, especially sexual mutilation, torture, rape, and enslavement, in all situations where the ICC is investigating in the DRC).
58
Pritchett, supra note 5, at 282.
59
Gambone, supra note 27.
60
Pritchett, supra note 5, at 281-82.
61
Id. at 283-84.
62
SáCouto, supra note 18, at 342.
63
Id.
64
Jordan A. Gilbertson, Little Girls Lost: Can the International Community Protect Girl Soldiers?, 29 U. LA vERNE L. REv. 219, 233-34 (2008).
65
Id. at 235.
66
See Haskell, supra note 46, at 67 (arguing that “the political needs of
the Security Council in ‘maintaining or restoring international peace and
security’ trump any concerns over human rights abuses.”).
67
Judith Gardam, Women and the Law of Armed Conflict: Why the Silence?, 46 INT’L & COMP. L.Q. 1, 56 (Cambridge University Press,
1997).
68
Id. at 56.
69
Id.
70
See Pritchett, supra note 5, at 270 (arguing that “international law and
prosecution are products of a particular socio-historical context of elite
men and Western-state supremacy.”).
71
Id. at 269.
72
Id. at 273.
73
See id. at 301 (noting that “[i]n many areas of the country, years of war
and economic depression have rendered the national judicial system ‘decrepit’ and ill-equipped to deal with the rapes.”).
74
Haskell, supra note 46, at 75-76.
75
See id. at 76 (arguing that the gacaca laws in Rwanda prevented the
adjudication of sexual slavery and rape cases due to the attached social
stigma, while the ICTR poorly investigated sexual violence during the
Rwandan conflict).
76
Anup Shah, United States and the International Criminal Court,
GLOBAL ISSUES, Sept. 25, 2005,
http://www.globalissues.org/article/490/united-states-and-the-icc.
77
See id. (asserting that the Bush Administration un-signed the Rome
Statute to prevent the ICC from encroaching on U.S. sovereignty).
78
See id. (explaining that, due to U.S. pressure, the U.N. Security Council agreed to exempt peacekeeping officers prosecution, despite harsh
criticism from Amnesty International, which argues that the exemption
undermines the purpose of the ICC).
79
Julie Goldscheid, Domestic and Sexual Violence as Sex Discrimination: Comparing American and International Approaches, 28 T. JEFFERSON L. REv. 355, 358 (2006).
80
Id.
81
Id. at 358-59.
82
See id. at 359-60 (challenging the notion that “sexual socialization” accounted for male domination, and arguing that feminist advocacy prevented re-victimization of women who suffered sexual violence).
83
Id. at 366.
84
Goldscheid, supra note 80, at 369-70.
85
Id. at 371.
86
Id. at 371-72.
87
WAYNE PETHERICK, SERIAL CRIME: THEORETICAL AND PRACTICAL ISSUES
IN BEHAvIORAL PROFILING 320 (2009).
88
159 P.3d 531 (Ariz. 2007).
89
Id. at 535.
90
Id. at 535, 546.
91
129 P.3d 321 (Cal. 2006).
92
Id. at 334.
109
849 A.2d 648 (Conn. 2004).
617 N.E.2d 389 (Ill. App. Ct. 1993).
95
Pritchett, supra note 5, at 297.
93
94
About the Author
Meredith Owen is a 2L at American University
Washington College of Law, studying criminal justice issues both in the United States and abroad.
Her interests also include the development of the
rule of law and international business transactions,
particularly in post-conflict states. She hopes to
pursue a career in creating a broad understanding
of criminal justice issues across the world.
110
Winter 2009
Juveniles Locked Up for Life for Non-Homicides:
Cruel & Unusual or an Appropriate Punishment?
PAnel suMMAry
by Julie swAney
T
he Criminal Law Society and
Criminal Law Brief co-hosted a
panel discussion on November
19, 2009 at the Washington College of Law (WCL) in Washington, D.C.,
entitled, “Juveniles Locked Up for Life for
Non-Homicides: Cruel & Unusual or an
Appropriate Punishment?” The two organizations brought together leading voices on both sides of the controversial issue of sentencing juveniles to life
without parole for non-homicide offenses. Held just one week after the Supreme Court heard oral arguments in
two cases addressing the issue, the panelists debated the cases of Graham v. Florida1 and Sullivan v. Florida2. In
both cases, Florida convicted young men of non-homicide crimes, aggravated assault and battery and rape respectively, and sentenced each to life imprisonment without the possibility of parole. The Supreme Court was asked
to decide whether this sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment
when imposed upon juveniles. The Petitioners’ fundamental argument was that juveniles are different because
their personalities have not yet fully formed, reminding the Court that it used that same reasoning when deciding
Roper v. Simmons3, which prohibited sentencing juveniles to death. The Respondents asserted that states should
maintain the discretion to administer their respective criminal sentencing systems and that life without parole for
a juvenile is not cruel and unusual because many states permit the sentence.
The four panelists, moderated by WCL Criminal Law Professor Mary Fan, engaged in a lively debate about
juvenile sentencing. Arguing for the Petitioners’ side were Jody Kent, National Coordinator of the Campaign for
the Fair Sentencing of Youth, and vincent Southerland, Associate Counsel for the NAACP Legal Defense and Education Fund. Ms. Kent asserted that juveniles have scientifically been found to have less reasoning and moral
aptitude than adults. Therefore, she argued, they are not as culpable for the crimes they commit. Mr. Southerland
maintained that young people make bad choices all the time, but that there is still the opportunity to rehabilitate
them and put them on the right path. Further, he argued that society’s purpose for sentencing juveniles is different.
As opposed to adult prison sentences, in which the primary
goals are to deter crime and punish offenders, the main objective of the juvenile criminal justice system is to rehabilitate.
Arguing the Respondent’s position were Cully Stimson, Senior Legal Fellow at the Heritage Foundation, and
Scott Burns, Executive Director of the National District
Attorneys Association. Mr. Stimson contended that even
though the perpetrators may be juveniles, they committed
very serious adult-like crimes. He further reasoned that if
the crime was serious, then the punishment should be serious as well. Mr. Burns discussed the stories of victims
of grave crimes committed by juveniles and asked that the impact of the crimes upon victims not be forgotten. He
stressed the need for victims to see offenders punished harshly for the purpose of achieving closure.
After presenting their arguments and responding to each other, the panelists fielded questions from the audience, which consisted of WCL students, faculty, and community members.
Criminal Law Brief
111
To listen to the full podcast of the panel, visit the following link:
http://www.wcl.american.edu/podcast/podcast.cfm?uri=http://www.wcl.american.edu/podcast/audio/20091124_W
CL_JSLP.mp3
The Criminal Law Society and Criminal Law Brief will be hosting a Symposium on Monday, March 29,
2010 from 9:00am-12:00pm to explore what society should do when the practical enforcement of criminal law
conflicts with constitutional protections. More details about the symposium will be posted at http://www.wcl.american.edu/org/criminal/.
130 S.Ct. 357 (Mem).
129 S.Ct. 2157 (Mem).
3
543 U.S. 551 (2005).
1
2
About the Author
Julie Swaney is a second year law student at the
Washington College of Law, focusing on criminal
law. Working as a Dean's Fellow for WCL Professor Angela Davis has given her exposure to a broad
range of criminal justice issues and has further developed her passion for criminal defense. As current President of the WCL Criminal Law Society,
she hopes to help fellow students interested in the
field of criminal law gain a deeper understanding of
the issues and build a network of contacts within the
legal community.
112
Winter 2009
Supreme Court Watch
Recent Decisions of Selected Criminal Cases
by diAnA tAFur
Beard v. Kindler
08-992
decided: December 2009
question Presented:
For the purposes of federal habeas relief, can the
adequacy of a state procedural rule hinge upon whether
the rule is discretionary rather than mandatory?
Bobby v. Van Hook
558 U.S. ___ (2009)
Facts:
Joesph Kindler was convicted of first degree
murder in a Pennsylvania state court and sentenced to
death. Kindler appealed his sentence, but then escaped
from prison before the judge could rule on the appeal.
Kindler was captured in Quebec, but shortly thereafter,
he escaped a second time and was recaptured. Five
years later, Kindler sought reinstatement of his post-verdict appeal, but the court denied the appeal, holding that
Kindler had waived his right to appeal his conviction
because he fled prison. The Pennsylvania Supreme
Court affirmed the ruling. In 1999, Kindler filed and was
denied a habeas petition in federal district court. On appeal, the Third Circuit found that Pennsylvania’s fugitive-forfeiture rule, which allowed for judicial
discretion, was inadequate to bar federal review. Pennsylvania appealed to the Supreme Court.
decided: November 2009
question Presented:
For purposes of Strickland v. Washington, 466
U.S. 668 (1984), should defense counsel’s performance
be reviewed under professional standards that existed at
the time of trial, as the majority of circuits require, or
the under the current professional standards?
Facts:
Robert van Hook was convicted of aggravated
murder with one capital specification and aggravated
robbery. van Hook picked up David Self at a bar and
the two went to Self’s apartment where van Hook lured
Self into a vulnerable position, strangled him until he
was unconscious, and then killed him with a kitchen
knife.
decision:
At the sentencing hearing, the defense called
In a unanimous decision, the Supreme Court eight mitigation witnesses, and van Hook himself gave
held that “a discretionary state procedural rule can serve an unsworn statement. Defense counsel prepared the
as an adequate ground to bar federal habeas review. witnesses before the indictment, trial, and sentencing.
Nothing inherent in such a rule renders it inadequate for The U.S. Court of Appeals for the Sixth Circuit granted
purposes of the adequate state ground doctrine.” The van Hook relief, holding that van Hook’s attorneys perCourt noted that this decision should not provide broad formed deficiently in investigating and presenting mitigating evidence at his sentencing.
guidance on the “adequate state ground doctrine,” not
ing that “[i]f our holding in this case is narrow, it is be- decision:
cause the question we granted certiorari to decide is narThe Supreme Court held that the defense attorrow.”
ney acted reasonably. Citing the holding from Strickland, that representation must not fall below an
objective standard of reasonableness in light of prevailCriminal Law Brief
113
ing professional norms, the Court concluded that the
Sixth Circuit erred in relying on ABA guidelines established 18 years after van Hook’s trial. The Court stated
that the Constitution has never required that defense
counsel fully comply with statutory mandates. Although
states are free to impose rules to ensure appropriate representation, the Court held that such rules should be regarded as evidence of what a reasonable diligent lawyer
should do, rather than what a reasonable lawyer is required to do. Accordingly, the Court concluded that the
attorney’s investigation was reasonable and van Hook
was not deprived of effective assistance of counsel.
18 U.S.C. § 3501 abrogated the McNabb-Mallory doctrine, which makes confessions inadmissible if they are
obtained during an unreasonably long period of detention between the arrest and preliminary hearing. The
Third Circuit ruled that under § 3501, confessions are
admissible and voluntary after considering the points
listed in § 3501(b), even if the presentment delay was
unreasonable.
decision:
In a 5-4 decision, the Supreme Court reversed
and remanded the Third Circuit’s decision and held that
§ 3501 only limits McNabb-Mallory rather than total abCorley v. United States
rogation. The Court ruled that the McNabb-Mallory
doctrine still makes voluntary confessions inadmissible
when they are given after an unreasonable delay. The
556 U.S. ___ (2009)
Court clarified that § 3501(a) can only be interpreted
to mean that all voluntary confessions are admissible as
decided: April 2009
evidence, except when the confession is made after an
unreasonable delay in presenting the defendant to the
question Presented:
Does federal law permit the suppression of a magistrate. In so ruling, the Court relied upon §
voluntary confession made more than six hours after ar- 3501(c), which prevents a confession from being “inadrest but before presentment to a magistrate, as a conse- missible solely because of delay” when the confession
is (1) voluntary and (2) made within six hours of arrest.
quence of unreasonable delay in presentment?
The Court stated that holding otherwise would make
subsection (c) superfluous.
Facts:
Johnnie Corley was suspected of robbing a bank
Justice Alito, joined by Chief Justice Roberts,
in Norristown, Pennsylvania. Federal agents went to arrest Corley and found him attempting to escape in his Jr., Justices Scalia, and Thomas dissented, arguing that
car. Corley nearly ran-over one officer and pushed the language found in § 3501(a) unambiguously makes
down another. At 8:00 a.m., the agents arrested Corley confessions admissible if they are voluntarily given.
for assaulting federal officers.
Federal agents kept Corley at a local police staDistrict Attorney’s Office for the Third
tion while they questioned witnesses. At 11:45 a.m., the
District v. Osborne
agents took Corley to the hospital to treat minor cuts he
sustained during the arrest. Agents then took Corley to
the Philadelphia FBI office at 3:30 p.m. and held him 557 U.S. ___ (2009)
there until 6:30 p.m. The federal agents then asked Corley to put an alleged oral confession in writing. How- decided: June 2009
ever, Corley told the agents he felt tired, so the agents
held him overnight. The interrogation resumed at 10:30 question Presented:
Under 42 U.S.C. § 1983 or under the Fourteenth
a.m. the next morning, concluding with Corley signing
a written confession. At 1:30 p.m., 29.5 hours after his Amendment’s Due Process Clause, is a defendant entiarrest, police presented Corley to a magistrate who tled access to a state’s biological evidence following
charged him with armed robbery and several other re- conviction?
lated charges. Corley moved to suppress the confession.
The District Court denied his motion to suppress Facts:
In March 1994, William Osborne was convicted
under Rule 5(a), finding no unreasonable delay since
Corley asked for a break and had to be taken to the hos- of kidnapping, assault, and sexual assault for forcing
pital. The Third Circuit affirmed the ruling, holding that the victim to perform several sex acts, choking her, beat114
Winter 2009
ing her with his gun and handle of a wooden axe, and
shooting her in the head. After his conviction, Osborne
requested the DNA evidence the state used against him.
Osborne wanted to use new DNA testing technology to
show that he was not the source The state denied Osborne’s request, and upon denial, Osborne filed suit pursuant to § 1983 claiming the District Attorney’s Office
violated his Fourteenth Amendment right to due process
by refusing to provide potentially exculpatory evidence.
The Ninth Circuit reversed and remanded the
district court’s denial of Osborne’s motion.
decision:
In a 5-4 decision, the Supreme Court held that
access to such DNA evidence, after Osborne was convicted in a fair trial, is not a constitutional right, but
rather an issue for the states and the federal government
to legislate. The Court pronounced that the appropriate
test is the Brady v. Maryland, 373 U.S. 83 (1963) test,
which asks whether the state’s post-conviction procedures for relief offend a principle of justice so rooted in
the traditions and conscience of our people as to be
ranked as fundamental, or transgresses any recognized
principle of fundamental fairness in operation.
Applying Brady, the Court found the state’s
post-conviction relief procedures to be adequate. The
state allows individuals the right to be released when the
evidence is sufficiently compelling in establishing innocence and allows for discovery in post-conviction proceedings, including access to DNA. There was ample
evidence, aside from the DNA evidence, that Osborne
committed the crime.
Justice Stevens filed a dissenting opinion joined by
Justice Ginsburg, Justice Breyer, and Justice Souter
joined in part, arguing that the Court’s prior decisions
and implementation of DNA access laws across the
country make judicial intervention more, not less, appropriate.
Flores-Figueroa v. United States
556 U.S. ___ (2009)
decided: May 2009
question Presented:
Can an individual, who used false identification
in the commission of a crime but was unaware that it
belonged to another person, be convicted of “aggravated
Criminal Law Brief
identity theft” under 18 U.S.C. § 1028A(a)(1)?
Facts:
In 2000, Ignacio Flores-Figueroa secured employment using a false name, birth date, Social Security
number, and a counterfeit alien registration card. Flores-Figueroa is a citizen of Mexico. In 2006, FloresFigueroa provided his employer with more counterfeit
documents that used his real name, but he was unaware
that the documentation was legally registered to other
people. The government charged Flores with entering
the United States without inspection, misusing immigration documents, and aggravated identity theft. Flores-Figueroa was convicted on two counts of aggravated
identity theft in a federal district court and sentenced to
75 months imprisonment.
Flores-Figueroa appealed the conviction, contending that the aggravated identify theft offense required he
have knowledge that the identification belonged to another individual. The Eighth Circuit rejected the argument and affirmed the trial court’s decision.
decision:
The Supreme Court concluded that §
1028A(a)(1) requires the government to prove that the
defendant knew that the means of identification he unlawfully transferred, possessed, or used, belonged to a
real person. Applying the rules of statutory construction, the Court explained that phrases in a criminal
statute that introduce the elements of a crime with the
word “knowingly,” must be read as applying “knowingly” to each element. In this case, because FloresFigueroa did not know the information belonged to
another, the government did not meet its burden of
showing that Flores-Figueroa knowingly violated the
statute. The Court reversed and remanded.
Justice Scalia, joined by Justice Thomas, wrote
a separate concurring opinion, expressing that a mens
rea or “knowingly” requirement should not ordinarily
be read into criminal statutes, especially when the statute
is carefully constructed to limit or eliminate a mens rea
requirement.
Justice Alito also wrote a separate concurrence,
noting that he was concerned that the Court’s ruling
would be read as applying an overly-rigid rule of statutory construction.
Knowles v. Mirzayance
115
556 U.S. ___ (2009)
decided: March 2009
question Presented:
Does a defense counsel’s recommendation to
abandon an insanity defense constitute ineffective assistance of counsel for the purpose of federal habeas law?
Facts:
Alex Mirzayance confessed to murdering his 19year-old cousin by stabbing her nine times with a hunting knife and then shooting her four times. At trial, he
entered two pleas, one of not guilty and another of not
guilty by reason of insanity (NGI). Under California
law, when these two pleas are entered, the court must
hold a bifurcated trial, guilt determined during the first
phase and the viability of the defendant’s NGI plea during the second. Mirzayance sought to avoid a first-degree murder conviction during the guilt phase of
Mirzayance’s trial and presented medical testimony that
he was insane at the time of the crime. The jury still
convicted Mirzayance of first-degree murder. On the
advice of his counsel, Mirzayance abandoned his NGI
plea because he would have borne the burden of proving
his insanity to the same jury that had just convicted him
of first-degree murder. After the court sentenced Mirzayance, he challenged the conviction, claiming ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984).
The California trial court denied the petition and
the California Court of Appeal affirmed. The United
States Court of Appeals for the Ninth Circuit found that
the state court had unreasonably applied clearly established case law that defense counsel’s failure to pursue
the insanity defense constituted deficient performance.
decision:
In a unanimous opinion, the Supreme Court reversed the Ninth Circuit judgment and remanded the
case with instructions to deny the petition, ruling that
the California’s decision to deny Mirzayance’s claim did
not violate clearly established federal law.
Under the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254(d)(1), a federal court may
not grant a state prisoner’s habeas application unless the
relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” In its ruling, the Court rejected
116
the Ninth Circuit analysis that Mirzayance had “nothing
to lose” in pursuing his NGI defense and concluded that
federal law never established such a standard. Instead,
the Court ruled that habeas relief may only be granted
if the state court decision unreasonably applied the ineffective-assistance-of-counsel standard established by
Strickland, which holds that a defendant must show deficient performance and prejudice.
The Court found that Mirzayance’s ineffectiveassistance claim failed because it was reasonable for the
state court to conclude Mirzayance’s defense counsel’s
performance was not deficient. When Mirzayance’s attorney advised him to abandon the NGI claim, the attorney did so because he believed his client stood almost
no chance of success. The Court noted that it has never
required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic
chance for success. Accordingly, the Court found
Mirzayance’s attorney did not violate the Strickland
standard.
Montejo v. Louisiana
556 U.S. ___ (2009)
decided: May 2009
question Presented:
Must an indigent defendant affirmatively accept
the appointment of counsel in order to preclude future
police interrogation without an attorney present?
Facts:
Jesse Montejo was charged with first-degree
murder and the court ordered that an attorney be appointed for Montejo. Later that day, the police advised
Montejo of his Miranda rights and asked Montejo to accompany them in locating the murder weapon. Montejo
agreed. Neither Montejo, nor the police officers, were
aware that Montejo had been appointed an attorney.
During the search for the weapon, at the suggestion of
one of the detectives, Montejo wrote an inculpatory letter of apology to the victim’s widow. Upon returning
to the police station, Montejo finally met his court-appointed attorney. At trial, his letter was admitted over
defense objection, and he was convicted and sentenced
to death.
The Louisiana Supreme Court concluded that,
although Montejo had been appointed counsel at the
Winter 2009
preliminary hearing, Montejo had not affirmatively requested counsel or invoked any of his Miranda rights,
and, therefore, the letter was admissible.
decision:
In a 5-4 opinion, the Supreme Court overruled
Michigan v. Jackson, 475 U.S. 625 (1986), a case holding that law enforcement must refrain from interrogating
suspects once they have invoked their right to counsel
at a preliminary hearing. The Court found Jackson unworkable because, in some jurisdictions, counsel is automatically appointed to indigent suspects, while other
jurisdictions require suspects to formally request counsel before they are appointed an attorney. The Court explained that suspects are afforded sufficient Fifth and
Sixth Amendment protections. Accordingly, the appropriate analysis is not whether or not the suspect was appointed counsel, but whether or not officers provided
the suspect with his Miranda warnings and whether the
suspect invoked those rights.
Although the Court found that the Louisiana
Supreme Court correctly rejected Montejo’s claim under
Jackson, the Court remanded the lower court’s decision
in order to provide Montejo an opportunity to contend
that his letter of apology should still have been suppressed on other grounds.
Justices Alito, joined by Justice Kennedy, filed
a concurring opinion, noting that the Court was entitled
to reject the doctrine of stare decisis and overturn Jackson because Jackson was poorly reasoned.
Justice Stevens, joined by Justice Souter, Justice
Ginsburg, and Justice Breyer dissented, arguing that
Jackson was not poorly reasoned and did not need to be
overturned.
Justice Breyer filed a separate dissenting opinion, taking exception to the dissent’s concession that
New York v. Belton, 453 U.S. 454 (1981) should have
been overturned.
the owner consented to entry by previously permitting
an undercover informant into the home?
Should the Court should overrule Saucier v.
Katz, 533 U.S. 194 (2001), a case holding that a qualified immunity challenge must pass a two-pronged test:
first, the facts alleged must show that the government
official(s) violated a constitutional right, and second that
constitutional right was clearly established?
Facts:
An informant for the Central Utah Narcotics
Task Force arranged to buy methamphetamine from
Afton Callahan. The informant arrived at respondent’s
residence, confirmed Callahan had methamphetamine,
and then left Callahan’s home to obtain money. Police
officers gave the informant a marked $100 bill and a
concealed electronic transmitter on the informant’s person. Callahan’s daughter let the informant into the home
while Callahan retrieved a large bag containing methamphetamine from his freezer and sold the informant a
gram of methamphetamine. Then the informant gave
an “arrest” signal, and law enforcement entered the
home through a porch door. The officers conducted a
protective sweep of the premises, recovering the large
bag of methamphetamine, the marked bill, the small bag
containing methamphetamine from the informant, and
drug syringes. Callahan was charged with the unlawful
possession and distribution of methamphetamine.
Under 42 U.S.C. § 1983, Callahan sued the police officers for conducting a warrantless search. The
United States Court of Appeals for the Tenth Circuit
held the officers were not entitled to qualified immunity,
finding that a reasonable police officer would have
known not to proceed into the home without a search
warrant.
decision:
Justice Alito delivered the Court’s unanimous
opinion
holding the Saucier protocol should not be rePearson v. Callahan
garded as mandatory in all cases and concluded the officers were entitled to qualified immunity. The Court
revisited the doctrine of qualified immunity protecting
555 U.S. ___ (2009)
government officials “from liability for civil damages
insofar as their conduct does not violate clearly estabdecided: January 2009
lished statutory or constitutional rights of which a reasonable person would have known,” as declared in
questions Presented:
For qualified immunity purposes, may police of- Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) and
ficers enter a home without a warrant on the theory that Saucier, 533 U.S. 194. Under Saucier the Supreme
Court mandated a two-step procedure for resolving
Criminal Law Brief
117
whether government officials’ qualify for immunity.
The procedure requires courts to first decide whether the
plaintiff has alleged facts that constitute a violation of a
constitutional right. If the first step is satisfied, then the
court must decide whether the right at issue was “clearly
established” at the time of government official’s alleged
misconduct.
Reviewing the consequences of Saucier, the
Court determined that the imposition of the Saucier rule
requires courts to depart from the general rule of constitutional avoidance, creates unnecessary litigation of
constitutional issues, wastes the parties’ and judicial resources when such litigation has no effect on the outcome of the case, and fails to contribute to the
development of constitutional law because of the factintensive nature of the cases. Upon this reflection the
Court held that, although the Saucier procedure is often
appropriate, it should no longer be regarded as mandatory. The Court concluded that district court and appellate court judges should be permitted to exercise
discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.
Applying this rational, the Court concluded that because
these officers relied on the “consent-once-removed”
doctrine, which had gained acceptance in the lower
courts, the officers did not violate clearly established
law and are entitled to qualified immunity.
Rivera v. Illinois
(1986), parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based
on race, ethnicity, or sex. At trial, the challenged juror
was appointed the jury foreperson and the jury found
Rivera guilty of first-degree murder.
On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge. The Supreme
Court of Illinois held that the peremptory challenge
should have been allowed, but that the error was harmless.
decision:
The Supreme Court unanimously affirmed the
lower decision, holding that the Due Process Clause of
the Fourteenth Amendment does not require reversal
whenever a criminal defendant’s peremptory challenge
is erroneously denied. The Court emphasized that it has
never held a freestanding constitutional right to peremptory challenges, referring to it as a “creature of statute.”
Rejecting Rivera’s argument, the Court held that if a defendant is tried before a qualified jury composed of individuals not challengeable for cause, then the loss of a
peremptory challenge due to a state court’s good-faith
error is not a matter of federal constitutional concern.
The Court concluded the trial judge’s refusal to excuse
the challenged juror did not deprive Rivera of his constitutional right to a fair trial. The record did not show
that the trial judge repeatedly or deliberately misapplied
the law or acted in an arbitrary or irrational manner. Instead, the record demonstrated the trial judge’s effort to
enforce the anti-discrimination requirements of Batson.
556 U.S. ___ (2009)
decided: March 2009
Vermont v. Brillon
556 U.S. ___ (2009)
question Presented:
Does an erroneous denial of a criminal defendant’s peremptory challenge, resulting in the challenged decided: March 2009
juror being seated, require automatic reversal of a conquestion Presented:
viction?
Do delays caused by public defenders, or resultFacts:
ing from a state’s system of public defense, deprive a
During jury selection in Michael Rivera’s first- criminal defendant of his right to a speedy trial?
degree murder trial, his counsel sought to use a peremptory challenge to strike a female venire member. Facts:
However, Rivera had already exercised two peremptory
On July 27, 2001, police arrested Michael Brilchallenges against women, one of whom was African- lon for assaulting his girlfriend. Three days later he was
American. Believing Rivera was discriminating against arraigned in a vermont state court and charged with
women, the trial court rejected the third peremptory felony domestic assault. The day of the arraignment,
challenge. Under Batson v. Kentucky, 476 U.S. 79 the county public defender’s office appointed a public
118
Winter 2009
defender as Brillon’s first attorney. In October, the public defender filed a motion to recuse the trial judge.
After a month, the motion was denied. In mid-January,
the public defender moved for a continuance and the
trial court denied the motion. On February 22, four days
before the jury draw, the public defender again moved
for a continuance. When the trial court denied the motion, Brillon asked the public defender be dismissed as
his counsel and the court granted the motion. That same
day, the trial court appointed a second attorney, but the
second attorney immediately withdrew based on a conflict. On March 1, 2002, the court assigned Brillon a
third attorney. On May 20, Brillon filed a motion to dismiss the third attorney for failure to file motions and
lack of communication. On June 11, the third attorney
moved to withdraw himself on the ground that Brillon
had threatened his life. That same day, the trial court
appointed a fourth attorney. Two months later, Brillon
filed a motion to dismiss the fourth attorney. At a November 26 hearing, the fourth attorney reported that his
contract with the Defender General’s office had expired
several months prior and that he was attempting to have
Brillon’s case reassigned. On January 15, 2003 the defender’s office appointed Brillon’s fifth attorney. The
fifth attorney sought an extension for discovery deadlines on February 25. However, on April 10, the fifth
attorney withdrew from the case based on contract modifications with the Defender General. On August 1,
2003, the Defender’s Office appointed a sixth attorney
for Brillon. On February 23, 2004, Brillon filed a motion to dismiss for lack of a speedy trial, but the trial
court denied the motion.
The case finally went to trial on June 14, 2004.
The jury found Brillon guilty and he was sentenced to
12 to 20 years in prison. The vermont Supreme Court
vacated defendant’s conviction and held that he had
been denied his Sixth Amendment right to a speedy trial.
decision:
In a 7-2 decision, the Supreme Court reversed
and remanded the vermont Supreme Court’s decision,
holding that the vermont Supreme Court erred in considering Brillon’s assigned counsel as state actors because assigned counsel, just as retained counsel, act on
behalf of their clients, and delays sought by counsel are
ordinarily attributable to the defendants they represent.
Noting that the Sixth Amendment guarantee of a speedy
trial is dependent upon circumstances, the Court attributed most of the delays to the defendant’s dismissal of
counsel. Referring to Barker v. Wingo, 407 U.S. 514
Criminal Law Brief
(1972), which established a balancing test in which the
conduct of both the prosecution and the defendant are
weighed, the Court highlighted several factors in determining whether a delay constitutes a deprivation of a
speedy trial: length of delay, reason for the delay, the
defendant’s assertion of his right to a speedy trial, and
prejudice to the defendant. The Court found that most
of the delays in Brillon’s trial were attributable to him.
Accordingly, the Court concluded, absent defendant’s
deliberate efforts to force the withdrawal of his prior
counsel, no speedy-trial issue would have arisen.
Justice Breyer, joined by Justice Stevens dissented, arguing that there was no convincing reason to
find error in the vermont Supreme Court decision. In
overturning Brillon’s conviction, the vermont Supreme
Court, the dissent argued, properly attributed time
against the state.
Wong v. Belmontes
558 U.S. ___ (2009)
decided: November 2009
question Presented:
Is an individual deprived of effective assistance
of counsel where counsel failed to present mitigating
evidence regarding that individual’s background, character, mental state, and positive prison adjustment?
Facts:
While committing a burglary, Fernando Belmontes clubbed Steacy McConnell to death with a steel
dumbbell bar. Belmontes struck her 15-20 times in the
head until she died and then he stole her stereo. A jury
convicted Belmontes of murder and he was sentenced
to death.
At the sentencing hearing, Belmontes’s defense
attorney elicited testimony from nine witnesses about
Blemontes’s difficult childhood and religious conversion. As a strategy decision, Belmontes’s attorney refused to elicit any other character evidence because the
attorney did not want to open the door for the prosecution to discuss a prior murder in which Belmontes was
found, after the fact, to be an accessory.
Belmontes argued that, because his counsel did
not investigate and present sufficient mitigating evidence, he was deprived of effective assistance of counsel. The court of appeals agreed and granted Belmontes
119
federal habeas relief.
decision:
The Supreme Court held that Belmontes was not
deprived of effective assistance of counsel. Upholding
Strickland v. Washington, 466 U.S. 668 (1984), the
Court concluded that, to show ineffective assistance of
counsel, a defendant must establish that defense counsel’s representation fell below an objective standard of
reasonableness and prejudice. The Court found that
Belmontes’s attorney understood the gravity of Belmontes’s conduct in the prior murder and formed his
strategy to prevent “opening of the door.” The Court
weighed how a jury would react to all the mitigating evidence in light of the aggravating evidence. The Court
concluded that Belmontes’s attorney submitted sufficient mitigating character evidence.
Yeager v. United States
557 U.S. ___ (2009)
decision: June 2009
question Presented:
Under the Double Jeopardy Clause, may the
government retry acquitted defendants on factually related counts when the jury failed to reach a verdict?
Facts:
Scott Yeager, a former Enron executive, was
charged with wire fraud, securities fraud, insider trading,
money laundering, and conspiracy to engage in securities fraud and wire fraud. At trial the government tried
to show that Yeager defrauded Enron investors and
shareholders by purposely making misrepresentations
and material omissions about revenues, business performance, and technological capabilities. The jury acquitted Yeager on several securities and wire fraud
counts, but deadlocked on the remaining counts. The
government subsequently recharged Yeager for insider
trading and money laundering offenses.
Yeager moved to dismiss on double jeopardy
grounds. This district court denied the motion and the
Fifth Circuit Court of Appeals affirmed.
jury’s failure to return a verdict on other factually related
counts does not diminish the acquittals’ potential issuepreclusive force under the Double Jeopardy Clause.
Relying on Ashe v. Swenson 397 U.S. 436 (1970), which
precludes the government from retrying any crimes that
have as a necessary element any issue that was already
decided in a prior acquittal, the Court explained that, in
identifying which issues a jury had previously conclusively determined, courts should look only to the jury’s
decisions rather than its failures to decide. In other
words, “a jury speaks only through its verdict” because
hung counts are unavoidably inscrutable. The Court
concluded the jury’s inability to reach a verdict on the
insider trading counts were a “nonevent,” entitled to no
weight. The Court concluded that if the acquittal of insider trading was a critical issue of ultimate fact of all
the other charges, then the prosecution would be barred
from recharging on the other counts.
Justice Kennedy filed a separate concurring
opinion, expressing that the Court should have required
the lower court to revisit the factual analysis, rather than
making it optional.
Justice Scalia, joined by Justices Thomas and
Justice Alito dissented, arguing that the Double Jeopardy clause can have no preclusive effect within the
same proceeding. There must be a separate prosecution
altogether.
Justice Alito authored another separate dissent, to which
Justices Thomas and Scalia joined, arguing that an acquittal should only have preclusive effect when it would
have been irrational for the jury to acquit without a finding of fact.
grAnted CertiorAri
Florida v. Powell
08-1175
Argued: December 2009
question Presented:
Does the lack of any explicit advice stating that
a suspect has the right to counsel during questioning violate Miranda v. Arizona, 384 U.S. 436 (1966)?
decision:
In a 6-3 decision, the Court held that an apparent Facts:
inconsistency between acquittals on some counts and a
120
Winter 2009
Kevin Powell was convicted of felony in possession of a firearm. When Powell was arrested and taken
to the police department for questioning, the police recited to Powell, “You have the right to remain silent. If
you give up this right to remain silent, anything you say
can be used against you in court. You have the right to
talk to a lawyer before answering any of our questions.
If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.
You have the right to use any of these rights at any time
you want during this interview.” Powell subsequently
waived his rights. Powell appealed his conviction arguing that he was not did not explicitly notified that he had
a right to an attorney “during” his questioning, and
therefore the questioning violated Miranda. The Florida
Supreme Court ultimately reversed the conviction, holding that being told that an individual has the right to talk
an attorney before questioning is insufficient.
Johnson v. United States
08-6925
Argued: October 2009
question Presented:
Is a prior state conviction for “battery,” in all
cases, considered a “violent felony,” even where the
state does not include as an element of the offense the
use or threatened use of physical force?
Facts:
Curtis Johnson pleaded guilty to a single federal
charge of possession of ammunition as a convicted
felon. Johnson had several previous felony state convictions for aggravated battery, burglary, and battery.
The Armed Career Criminal Act (ACCA) imposes a 15Graham v. Florida & Sullivan v. Florida
year mandatory minimum sentence for an individual
convicted under the act who also has three prior convic08-7412 & 08-7621
tions for “violent felonies.” Under ACCA, Johnson was
subject to a 15-year mandatory minimum sentence. The
Argued: November 2009
district court sentenced him to 185 months of imprisonment. On appeal the Florida Supreme Court overturned
question Presented:
Does the Eighth Amendment’s ban on cruel and the sentence, ruling that battery did not constitute a viunusual punishment prohibit the sentence of life without olent felony because the use of force was not an element
the possibility of parole imposed on a juvenile convicted of the crime. The Eleventh Circuit reversed, upholding
of a non-homicide offense?
the trial court sentence.
Facts:
Terrance Graham was convicted of armed burglary and attempted armed robbery at the age of 16.
After serving a 12-month sentence, Graham was accused of a probation violation for his involvement in an
armed burglary. At the probation violation hearing, the
judge considered Graham’s violent history and sentenced him to life in prison without parole.
At the age of thirteen, Joseph Sullivan was convicted of burglary and raping an elderly woman. At sentencing, the state presented evidence that Sullivan had
participated in at least seventeen crimes before the rape
and burglary. The judge determined that, given Sullivan’s violent past, he should be treated as an adult offender and sentenced Sullivan to life in prison without
the chance of parole.
Maryland v. Shatzer
08-680
Argued: October 2009
question Presented:
Is Edwards v. Arizona, 451 U.S. 477 (1981),
which prohibits interrogation of a suspect who has invoked the Fifth Amendment right to counsel, still applicable when the interrogation continues after a
substantial delay from when the suspect requested counsel?
Facts:
In 2006, Michael Shatzer, Sr., was charged with
a sexual offense in the second degree, sexual child abuse
by a parent, second degree assault, and contributing to
Criminal Law Brief
121
conditions rendering a child in need of assistance. In
August 2003, a police officer received a referral from a
social worker about a child sexual abuse case. After interviewing the child, the police officer contacted Shatzer
in jail where he was being held on a sex-offense charge
involving a different victim. At the outset of the interrogation, the police officer notified Shatzer he was an
officer and read him his Miranda rights. Shatzer invoked his right to counsel and the interview ceased. In
March of 2006, a different police officer, investigating
the same case, visited Shatzer in jail and read Shatzer
his Miranda rights. Shatzer signed the form and agreed
to talk with the officer. During this interrogation,
Schatzer never invoked his right to an attorney.
At trial, Schatzer moved to suppress the confession, arguing that he had invoked his right to counsel three
years prior to the 2006 interrogation. The trial court denied the motion. On appeal, the Maryland Court of Appeals reversed, holding that Edwards applies when a
suspect has been continually incarcerated and previously
invoked his right to counsel.
Pottawattamie County v. McGhee
08-1065
Argued: November 2009
question Presented:
Can a prosecutor, who procured false testimony
during an investigation and then introduced the testimony against a defendant at trial, be subjected to a civil
trial and potential damages for a wrongful conviction
and incarceration?
Facts:
In 1978, Curtis McGhee Jr. was tried and convicted for the murder of an Iowa police officer. The
Iowa Supreme Court vacated Harrington’s conviction in
2003, after becoming aware that the prosecutors failed
to disclose exculpatory evidence of an alternative suspect. In 2005, McGhee sued the prosecutors under 42
U.S.C. § 1983, alleging the prosecutors had coerced
false testimony from witnesses and intentionally withPadilla v. Kentucky
held exculpatory evidence of an alternative suspect.
The trial court granted Pottawattamie County’s
motion for summary judgment based on absolute and
08-651
qualified immunity. The Seventh Circuit held that a
prosecutor’s procurement of false testimony, without
question Presented:
Does the Sixth Amendment’s guarantee of effec- more, does not violate any of a criminal defendant’s
tive assistance of counsel require an attorney to advise constitutional rights. McGhee appealed to the Eighth
a non-citizen client that a guilty plea will trigger manda- Circuit under the collateral order doctrine. The Eighth
tory deportation, and if so, does it warrant setting aside Circuit reversed, holding that a prosecutor has no immunity “where the prosecutor was accused of both fabthe guilty plea?
ricating evidence and then using the fabricated evidence
at trial,” resulting in a post-trial “deprivation of liberty.”
Facts:
Jose Padilla, a non-citizen, was charged with
trafficking and possessing marijuana, possession of drug
Smith v. Spisak
paraphernalia, and operating a tractor without a weight
and distance tax number. Relying on advice from his
attorney, Padilla pleaded guilty to the drug charges. 08-724
Padilla’s guilty plea and subsequent conviction triggered
Argued: October 2009
deportation proceedings. Padilla filed for post-conviction relief, claiming ineffective assistance of counsel.
The Kentucky Court of Appeals reversed and remanded question Presented:
Did the Sixth Circuit contravene the Antiterrorthe conviction. The Kentucky Supreme Court reversed,
ism
and
Effective Death Penalty Act by improperly exholding that collateral consequences of attorneys’ advice
tending Mills v. Maryland, 486 U.S. 367 (1988), which
are outside the scope of the Sixth Amendment.
held that, in capital cases, jurors may not be precluded
from considering any mitigating circumstances proffered by the defendant?
122
Winter 2009
Argued: November 2009
Facts:
Frank Spisak was convicted of three murders in
1983. At the sentencing hearing, the trial court instructed the jury that if they all found proof beyond a
reasonable doubt that the aggravating circumstances in
each separate count outweighed the mitigating factors,
then they must return that finding to the court. Spisak
was subsequently sentenced to death.
However, the Sixth Circuit reversed and remanded the conviction, finding ineffective assistance of
counsel and a Mills violation because the jury instructions required unanimity in the finding that the aggravating circumstances outweighed the mitigating factors.
On appeal to the Supreme Court, the Court vacated the
judgment and remanded the case in light of Carey v.
Musladin, 549 U.S. 70 (2006) and Schriro v. Landrigan,
550 U.S. 465 (2007), two cases which addressed
Spisak’s ineffective assistance of counsel claim. On remand, the Sixth Circuit reinstated its decision.
United States v. Stevens
08-769
Argued: October 2009
question Presented:
Is 18 U.S.C. § 48, criminalizing, inter alia,
“knowingly selling depictions of animal cruelty with the
intention of placing those depictions in interstate commerce for commercial gain” facially invalid under the
Free Speech Clause of the First Amendment?
Facts:
Robert Stevens was convicted of selling videos
of pit bulls participating in dog fights and attacking
other animals through his business, “Dogs of velvet and
Steel” and a website called Pitbulllife.com. Stevens
moved to dismiss the indictment on the grounds that the
federal statute violates the Free Speech Clause, but the
district court denied the motion. On appeal, the Third
Circuit Court of Appeals reversed the conviction, finding that the statute was facially unconstitutional as a
content-based prohibition of speech.
question Presented:
Did the state court err in its application of the
Antiterrorism and Effective Death Penalty Act when the
state court determined that it was not ineffective assis
tance of counsel for a defendant’s novice attorney failure
to present available evidence of the defendant’s severely
impaired mental functioning?
Facts:
In 1994, Mr. Holly Wood was convicted capital
murder for killing his former girlfriend in her home. Evidence showed that Wood had an IQ within the range of
mental retardation. At sentencing, Wood’s attorney, who
had just recently been admitted to the bar, only attempted to mitigate by eliciting pleas of mercy from
Wood’s family members, testimony about his upbringing, a police report that indicated he had been drinking
at the time of his arrest, and a parole board report remarking that Wood needed anger-management therapy.
The novice attorney made no attempt to introduce evidence of mental retardation, and had not attempted to
investigate Wood’s mental handicaps. The jury sentenced Wood death.
Both the Alabama Court of Criminal Appeals
and the Alabama Supreme Court affirmed the conviction
and sentence, finding that the attorney’s decision not to
introduce evidence of mental retardation was a strategic
decision. Wood subsequently filed for relief in federal
courts. The federal district court granted relief, concluding that it was an unreasonable determination that the
attorney’s failure to introduce evidence was a strategic
decision. The Eleventh Circuit reversed, concluding
that there was ample evidence for the state courts to determine that the decision was a strategic move.
About the Author
Diana Tafur received her B.A. from Florida State
University, and is currently a 2L at the American
University Washington College of Law.
Wood v. Allen
08-9156
Criminal Law Brief
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