A Criminal Enterprise

What To Look For in the Coming Term – a Brief Preview of the Supreme Court’s Criminal Caseload

Posted in Cases, News by Bidish J. Sarma on September 2, 2009

Rob and I will provide detailed analyses of many of the criminal cases that the Court is set to hear this term.  But, first, here is an overview of what’s on the schedule.  To this point, the Court has granted certiorari in 19 cases that impact the rights of criminal defendants.  Though new themes may emerge as the Court grants more Petitions early in the term, the Court is set to make key decisions in the follow areas of constitutional criminal law and procedure:

Prophylactic Rules to Protect the Suspect’s Fifth Amendment Rights: Whittling Away

As last term’s decision in Montejo v. Louisiana demonstrates, some members of the Court are openly hostile to “prophylactic” Fifth and Sixth Amendment protections.  This term, the Roberts Court may be setting itself up for a future raid on the Warren Court’s treasure chest. If so, the death by a thousand cuts starts with two important Fifth Amendment cases that could fundamentally alter the scope of constitutional protection afforded to individuals whom the State decides to interrogate.

  • Florida v. Powell – the question presented here is whether, under Miranda, a suspect must be expressly advised of his right to counsel during custodial interrogation.  When the police interrogated Powell at the police department, they informed him that he had the right to an attorney “before answering” any questions.  The Florida Supreme Court affirmed the district court’s ruling that Miranda requires the police to advise a suspect specifically that he can have an attorney present during the interrogation.  The Court granted the State’s petition for certiorari.

  • Maryland v. Shatzer – this case requires the Court to decide whether its decision in Edwards v. Arizona, which prohibits the police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years after the invocation.  Before Edwards, the police could re-approach suspects who had previously invoked their Miranda rights and asked for an attorney.  Noting the immense coercive pressure the State can bring to bear upon suspects, the Supreme Court decided that the police could not re-initiate the interrogation of someone who has asked for a lawyer.  In Shatzer, the Court confronts a unique fact pattern, detailed here.  The extreme facts give the Court a vehicle to criticize Edwards’s wisdom and to limit Miranda’s reach.

Eighth Amendment Sentencing: Are Juveniles – Who Cannot Be Executed Under Roper v. Simmons — Also Different in the non-Capital Context?

Two cases present the Court with the question of whether life without parole sentences for juveniles who commit non-homicide crimes are unconstitutional under the Eighth Amendment.  I wrote about these cases – Graham v. Florida and Sullivan v. Floridahere.

Prosecutorial (Mis)Conduct: What Happens if the Prosecutor Crosses the Line?

The Court has agreed to decide two different cases that touch on what happens when the prosecutor intentionally engages in questionable behavior.  These cases emerge from very different postures, but both raise interesting questions:

  • Pottawattamie County v. McGhee – this case asks whether a prosecutor can be subjected to a lawsuit for civil damages for wrongful conviction and incarceration where the prosecutor knowingly elicits false testimony during a criminal investigation, and introduces that testimony against the criminal defendant at trial.  The outcome will depend on whether the Court views the procurement of false testimony to be a constitutional violation, and whether it finds that the prosecutors enjoy absolute prosecutorial immunity.
  • McDaniel v. Brown – the legal question presented is whether the evidence presented at the defendant’s trial was insufficient to support the conviction.  As SCOTUSblog states here, “[a]t the heart of McDaniel v. Brown is the ‘prosecutor’s fallacy,’ a trial error in which the prosecution equates the probability of the defendant’s DNA randomly matching the DNA found at the crime scene with the probability of the defendant’s innocence.”  The Ninth Circuit ruled in the defendant’s favor, and the Court granted the State of Nevada’s petition for cert.  As this Crime & Consequences post explains, the decision may turn on rules about what kind of evidence federal courts can rely upon when reviewing claims in federal postconviction.

The Sixth Amendment Confrontation Clause: Managing the Fallout from Crawford

Last term, in Melendez Diaz v. Massachusetts, an opinion which created a stir among prosecutors, Justice Scalia built upon his landmark Crawford opinion to explain that defendants cannot be denied the right to confront those individuals who create the lab reports in State crime labs.  This term, the Court has taken a case that may significantly limit Melendez-Diaz’s scope.  Briscoe v. Virginia asks the Court whether – if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis without presenting the testimony of the analyst who prepared the certificate – the state avoids violating a Sixth Amendment Confrontation Clause violation by providing that the accused has a right to call the analyst as his own witness?  SCOTUSblog posted a thoughtful analysis of the issue here.

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