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Coming Attractions

Looks like SCOTUS will start off its October term with oral argument in a case which might have earned an appearance on this blog's Bullshit Traffic Stop of the Week.™  The defendant in Hein v. North Carolina ran afoul of the law by having a malfunctioning right brake light; that led to a stop and a subsequent search which turned up a plastic baggie containing cocaine.  It certainly looks like a good search:  the Court has repeatedly held that any traffic violation provides a justification for a stop.

One problem:  there wasn't a violation.  While North Carolina law requires cars to have a "stop lamp," no state court had ever interpreted this to mean that both brake lights have to be functioning.  Nonetheless, the North Carolina Supreme Court upheld Hein's conviction, holding that even though there wasn't an actual violation of the law, the officer's determination that there had been was "reasonable."

It's going to be interesting to see what the Court does with this.  A number of other courts have held that an officer's mistake of law can still provide a valid basis for a stop.  (That seems to be the minority view, though.)  On the other hand, the Supreme Court has always stressed that the police officer's conduct is to be viewed objectively; the subjective motivation for a stop is irrelevant.  This might call for an application of the precedent established in Goose v. Gander:  a stop is not "objectively reasonable" if it's based on a police officer's subjective believe in a non-existent violation of the law.  Besides, it's hard to see why ignorance of the law can't provide an excuse for the ordinary citizen but can for a police officer.

Most of the other criminal cases on the Court's docket to date deal with vagaries of Federal statutes; there's one, for example, which presents the issue of whether conviction for possession of a short-barreled shotgun is a violent felony under the Armed Career Criminal Act, and another on the proper interpretation of the Sarbane-Oxley Act's prohibition of destroying a "record, document, or tangible object."  In that case, the "tangible object" was undersized harvested fish from the Gulf of Mexico:  the defendant had tossed them overboard after a Federal officer had issued him a citation and ordered him to bring them back to port.

No, I am not making that up.

Even though some cases deal with Federal law, they can provide guidance for interpretation of corresponding state statutes.  18 USC 875 makes it a crime to transmit in interstate commerce "any communication containing any threat to injure the person of another."  That corresponds to various Ohio ordinances, like telecommunications harassment and menacing.  Most courts have interpreted that to mean that the prosecution is only required to prove that a "reasonable person" would interpret the statement as a threat. 

Obviously, though, this has First Amendment implications, and the question presented this term in Elonis v. US is how and whether the objective test is affected by the Supreme Court's 2003 decision in Virginia v. Black, the cross-burning case, where the Court held that the term "threat" applies to "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."  So, again:  subjective v. objective.

There are also civil cases which might have application to criminal law.  What happens if you find out from one juror that another juror lied during voir dire?  That's the issue in Warger v. Shauers, a civil suit involving a serious motorcycle accident.  The jurors had all promised in voir dire that they could return a verdict for the plaintiff if they found the defendant liable, but during jury deliberations, the forewoman told the jurors that her daughter had been at fault in a fatal automobile accident, and if she had been sued, it would have "ruined her life."  Supposedly prompted by this revelation -- the defendants in this case were a young couple -- the jury returned a defense verdict.  Another juror disclosed this to the plaintiff's attorney a week after the verdict, and he filed a motion to set aside the verdict for juror dishonesty, with an affidavit from the juror about the forewoman's conduct.

The question presented by Warger is whether the affidavit can be used in this fashion.  Federal EvidR 606(B), like its Ohio counterpart, prohibits juror testimony about what happened during deliberations, with a few narrow exceptions, but the plaintiff argued that the evidence wasn't being submitted to show what happened in the jury room, but that the juror lied.  There are decisions form the lower courts on both sides of that issue, and that's how you wind up in the Supreme Court.  One note of distinction between the Federal and Ohio rule.  The plaintiff is also arguing that this can fall into the rule's exception allowing juror testimony that "extraneous information" was improperly brought into deliberations.  The Federal courts rejected that, too, but it does have a chance with the Supreme Court.  Not in Ohio, though; our rule allows juror evidence on that "only after some outside evidence of that act or event has been presented."

The Court's docket is only half full to date; another forty cases or so will be added.  Right now, I'm keeping my eye on Hein.  


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