Thursday, January 13, 2011

Does the Supreme Court’s Lack of Trial Experience Create Amusing Fourth Amendment Confusion?

Slate has an amusing article about Supreme Court oral arguments in some criminal law cases yesterday. The article underscores what I think is the most important thing to know about the Supreme Court as it handles criminal law cases: the Justices collectively have very little trial court experience. I made this point last November in greater detail.

My favorite paragraph from the Slate article:

Here's Chief Justice John Roberts, for example, describing the average jailbreak: "I assume the ordinary prison escape is—I don't know—over the wall, under the tunnel, or, you know, while the guard's looking a different way." Justice Anthony Kennedy wonders aloud: "This may be a bit rudimentary, but can you tell me why isn't the evidence always being destroyed when the marijuana is being smoked? Isn't it being burnt up?" And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, "there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid."

From reviewing the transcripts, the broader Fourth Amendment issue that the Justices seem to be struggling with is how police (and lawyers) will react and testify in court as a result of the Supreme Court's ruling. This is the type of issue that requires more attention to the experiences of trial lawyers and prosecutors, not just really smart Supreme Court experts.

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