101 Things I Learned in Law School

by Matthew Frederick

  74

  Guilty act + guilty mind = Guilty

  Actus non facit reum nisi mens sit rea means “an act does not make one guilty unless his mind is also guilty.” For a defendant to be found guilty of most crimes, he must have some awareness that his act was criminal.

  When a defendant enters a plea of not guilty by reason of insanity, he is arguing he lacked mens rea—the capacity to appreciate why his actions were wrong. In some states, an insanity plea allows an “irresistible impulse” defense, which says the defendant understood his behavior was wrong but was unable to control it.

  In civil cases, a defendant can be held liable without demonstration of a mens rea. But if it is successfully demonstrated, the award for damages is often increased.

  Crime deterrence

  75

  A criminal defendant may have to conduct a criminal investigation.

  Unlike civil litigants, who are entitled to acquire sworn, pretrial statements from the opposing side through the discovery process, a criminal defendant does not usually have the right to interview the prosecution or its witnesses. Consequently, a trial is usually a criminal defense attorney’s first opportunity to question the prosecution’s witnesses.

  The prosecution is required, however, to provide the defense a list of its witnesses as well as any potentially exculpatory evidence it possesses. Otherwise, a criminal defendant and/or his attorney often have to hire a private investigator to identify evidence and witnesses to support his case.

  76

  Contingency fees are prohibited in criminal cases.

  A contingency fee is payable to an attorney only upon the successful outcome of a civil case. In a criminal case, a contingency fee could create a conflict of interest—for example, in a murder case in which the defendant is the named beneficiary of the victim’s life insurance policy. If the defense attorney’s fee was based on the policy payout, she would not get paid if the defendant pleaded guilty via a plea bargain, and thereby would have no incentive to plea bargain on behalf of the client—even if it was in her client’s best interest.

  Answer to question, “How many hours did you work last week?”

  77

  An hour can be 116 minutes long.

  Lawyers usually bill in 6-minute (1/10 hour) increments. A 3.1-minute phone conversation could result in a bill for 6 minutes.

  78

  Invoking the Fifth Amendment in a criminal trial prevents self-incrimination. Invoking it in a civil trial may induce self-incrimination.

  Amendment V to the U.S. Constitution grants citizens accused of a crime the right to remain silent to avoid incriminating themselves. Witnesses in a civil trial may invoke this right only if a statement might implicate them in a crime for which prosecution is possible. The court and jury are usually entitled to make an adverse inference against a civil witness who does so.

  Common privileges

  79

  If a client brings a friend to a meeting with an attorney, privilege might be lost.

  The attorney-client privilege forbids a lawyer from disclosing information about a client’s case to anyone without the client’s permission. An attorney usually cannot be forced to reveal such information even in a legal proceeding. However, if a client brings a third party to a meeting with her attorney, and that party is not there to further her interest, the privilege may be lost.

  80

  You don’t know the rule until you know the exceptions.

  A presumption of all court testimony is that the opposing side may cross-examine its source. If a witness quotes someone who is not available for cross examination, the statement, if objected to by the opposing attorney, might be ruled hearsay and be forbidden.

  The rule against hearsay testimony has about thirty exceptions. In order to get a statement made outside court into court when its originator is unavailable to testify, one has to determine how to fit it into at least one of the exceptions. In practice, the exceptions to the rule are the rule.

  81

  Circumstantial evidence can be more damning than direct evidence.

  Direct evidence supports an assertion without need for other evidence or inferences. Eyewitness testimony is a common form of direct evidence: “I saw the defendant stab the victim” directly supports the prosecution’s case against a defendant.

  Circumstantial evidence has more than one possible interpretation, and therefore must be connected to other evidence or inferences to support an assertion. “I saw the defendant enter the building” does not indicate a defendant’s direct connection to a crime. But if multiple sources provide related testimony such that each checks and reinforces the others, a convincing argument may be made. By contrast, a single instance of direct eyewitness testimony may be mistaken or driven by ulterior motives.

  82

  Useful evidence isn’t necessarily admissible evidence.

  Relevance: Is the evidence connected to the issues at trial? Will it make an important alleged fact in the case more or less probable?

  Authentication: Can the evidence be shown to be what its proponent says it is? Can a proper chain of custody be shown, for example, by bringing to court the police officer who found it?

  Hearsay: If the source of the evidence cannot appear in court, can the evidence be admitted under a hearsay exception?

  Privileges: Will any privileges (spousal, attorney-client, etc.) prevent the evidence from being admitted?

  83

  Miranda v. Arizona, 384 U.S. 436 (1966)

  A few days before his twenty-second birthday in 1963, Ernesto Miranda was arrested in Arizona for kidnapping and rape. After a two-hour police interrogation, Miranda, who had a history of mental instability, signed a confession that was later used against him at trial. His court-appointed attorney objected to the confession’s use at trial, arguing that the police had not properly informed Miranda of his rights to counsel and to remain silent, making the confession less than voluntary. The objection was overruled, and Miranda was found guilty.

  Miranda appealed to the Arizona Supreme Court, which affirmed the trial court’s decision. He then appealed to the U.S. Supreme Court, which on a 5-4 vote reversed the state court’s decision to allow the confession into evidence. The Court held that statements made by a defendant in response to police interrogation are admissible only if the defendant was informed of his right to an attorney and right to remain silent prior to questioning. It emphasized that Miranda was a particularly vulnerable interviewee due to being “seriously disturbed” and suffering from “emotional illness of schizophrenic type.”

  Miranda was retried on the original charges in 1967 and was convicted without the prosecution’s use of the confession. He was paroled in 1972, but was in and out of prison over the next several years for various offenses. While free, he made a modest living working odd jobs and selling autographed Miranda Warning cards on the steps of the Phoenix courthouse. After several years of life on the fringes, he was stabbed to death in a fight. Several Miranda cards were found on him.

  Common categories of evidence

  84

  Judge: “Am I never to hear the truth?” Counsel: “No, my lord, merely the evidence.”

  —from Peter Murphy, Practical Guide to Evidence

  Johnnie Cochran, criminal defense attorney

  85

  The integrity of the system is more important to the court than the truth of one case.

  A trial’s search for truth is invariably imperfect because it cannot be conducted in a way that introduces unfairness into the legal system. If a piece of evidence was improperly acquired or mishandled by the prosecution, it may be excluded from trial even if it provides an incontrovertible link between the defendant and the crime, because evidence in future cases could be similarly abused. If this allows a guilty person to go free, it is not because the court is not interested in the truth of the case; it is because it accepts that the truth must take some small lumps in the short run so the court gets better at finding t
he truth in the long run.

  Standards of proof

  86

  Not guilty doesn’t mean innocent.

  In issuing a verdict of guilty, a jury asserts its belief that a criminal defendant is responsible for a crime beyond a reasonable doubt. A jury that believes a defendant is “probably guilty” must vote to acquit. A reasonable doubt must be derived rationally from the evidence, or from a lack of evidence presented by the prosecution. It cannot be based on sympathy for the accused, unfounded theorizing, or fanciful conjecture.

  87

  A guilty verdict isn’t binding.

  A verdict is a jury’s decision as to whether the facts presented to it fit the essential elements of a crime or civil harm. The judge uses the verdict as a guideline in creating an appropriate final judgment.

  A judge may not overturn a verdict of not guilty. However, in most jurisdictions, judges can set aside a guilty verdict in a criminal case, or any verdict in a civil case, if they determine the jury reached its verdict in error or did not base it on sufficient evidentiary ground.

  Common objections

  88

  Winning the battle might not be worth the collateral damage.

  Every case involves many small points of dispute: courtroom procedures, the admission of evidence, an inaccurate assertion by the opponent that, if refuted, may leave the jury confused, and more. Winning cases lose some of these battles. Size up quickly if a battle is worth fighting or if you should move on. Picking and losing too many battles can undermine your credibility before the court. It can also boost the confidence of your opponent, reducing the likelihood of a desirable settlement. And if a point of dispute is not central to your theory of the case, it likely will not work in your favor to engage it.

  If overruled on a crucial point, however, request that your objection be put on the record in case you appeal the decision.

  Federal judges once traveled the country on preset paths, or circuits, to hear cases. Abraham Lincoln rode the circuit in Illinois. Circuits later became permanent districts.

  89

  Roe v. Wade, 410 U.S. 113 (1973)

  Norma McCorvey, unsuccessful in her efforts to obtain an illegal abortion in Texas, sued the state of Texas in federal court, claiming state laws restricting abortion violated her right to privacy. The court ruled in favor of McCorvey (who used the alias Jane Roe) on the merits, but declined to issue an injunction that would have lifted the abortion ban.

  On appeal by Roe, the U.S. Supreme Court, acting simultaneously on a companion case, Doe v. Bolton, ruled that the Constitution creates a right to personal privacy that extends to a woman’s decision to have an abortion. However, the court balanced this right against the state’s interest in guarding prenatal life and women’s health by limiting state regulation to the third trimester of pregnancy. The Supreme Court later revised this limit to the point of fetal viability.

  Roe v. Wade was a case of won battles and lost wars, or vice versa. Roe gave birth before the initial trial was complete. She won her case in district court but was not granted the injunction she desired. But the district court, despite not granting her the desired injunction, helped Roe fight a larger cause: its decision left room for the U.S. Supreme Court to issue a ruling with farther reaching force. In later decades, McCorvey came to regret her role in Roe v. Wade and became a pro-life advocate.

  Supreme Court Justices in Bush v. Gore, 531 U.S. 98 (2000)

  90

  Judges are biased.

  Judges and juries interpret facts through the lenses of their own experiences. Although they may strive to be impartial, they cannot completely put aside their biases.

  91

  “We are under a Constitution, but the Constitution is what judges say it is.”

  —CHARLES EVANS HUGHES, U.S. Supreme Court Associate Justice (1910–1916) and Chief Justice (1930–1941)

  92

  States deliberately pass unconstitutional laws.

  Many state statutes, such as those criminalizing sodomy or defamation, are on the books in the United States despite having been declared unconstitutional by the U.S. Supreme Court. A conviction made under them in state court likely would be overturned if appealed to the U.S. Supreme Court.

  States sometimes pass trigger laws to express disagreement with the U.S. Supreme Court’s interpretation of the Constitution. Such laws have a provision stating they will take effect (be triggered) if the Supreme Court changes its interpretation of the Constitution. A number of states have passed trigger laws to abolish abortion should the U.S. Supreme Court overturn its 1973 decision in Roe v. Wade.

  Some reforms in eyewitness identification

  93

  Memory is a crime scene.

  According to the Innocence Project, more than three-fourths of convicts exonerated by DNA testing were found guilty on the basis of eyewitness testimony. Once thought highly accurate, eyewitness memory of an event is now known to be distorted by subsequent events, including the manner in which police conduct questioning, photo identifications, and line-ups. Like an unprotected crime scene, one’s memory of a crime is a record that can be irrevocably altered by later events taking place in the same space.

  Ronald Cotton and Jennifer Thompson

  94

  Ronald Cotton exoneration

  Jennifer Thompson, a white college student, was attacked in her bed by an intruder. She carefully studied the rapist’s features, and in a later photo lineup identified Ronald Cotton, an African American, as her attacker. Cotton, lacking a convincing alibi, was tried and convicted, and received a life sentence.

  In prison, Cotton crossed paths with inmate Bobby Poole, to whom he bore a resemblance; guards and other inmates occasionally confused the two. Poole bragged that he had committed the crimes for which Cotton had been convicted. Cotton gained a retrial, but Thompson again identified Cotton as her attacker and did not recognize Poole, who was in the courtroom. Convicted of the Thompson rape again, as well as another rape also based on eyewitness identification, Cotton received a sentence of life plus 54 years.

  Back in prison, Cotton contemplated killing Poole, who lived in the same dormitory, but was talked out of it by his father. Seven years after his second conviction, new lawyers for Cotton requested DNA review of the evidence. The only DNA sample left was a partial head of a sperm, but it was enough to prove conclusively that Poole, not Cotton, was the rapist. Ronald Cotton was freed after serving 10.5 years. Poole later died in prison.

  Two years after Cotton’s release, he and Thompson met and became close friends. They wrote a best-selling book about their experiences, and campaign together for reform in eyewitness testimony.

  95

  “We don’t see things as they are, but as we are.”

  —ANAÏS NIN

  96

  People act from a center of pain.

  When in conflict, people rarely act from a rational, logical center. Otherwise reasonable individuals can distort the truth due to feelings of anger, fear, rejection, or frustration over being misunderstood. Often, varying accounts of a conflict can be reconciled without litigation by making sure each party fully hears the other side and is fully heard itself without interruption. Where accounts cannot be thus reconciled, people often will accept disagreement if they are certain they have been heard and understood, and they often will forgive wrongs when they know the reasons for them.

  97

  There never was a Twinkie defense.

  San Francisco city supervisor Dan White, by many accounts, was an extraordinarily conscientious, well-respected member of his community. But in 1978, several days after resigning his position, White entered City Hall through an unguarded window and murdered Supervisor Harvey Milk and Mayor George Moscone. White’s defense team did not deny his guilt, but claimed he had been severely depressed. He suffered from diminished mental capacity, it was argued, making him incapable of the premeditation required for first degree murder. A psychiatrist testified to the symptoms of White�
��s depression, including a switch from a very healthy diet to one based on sugary snacks. The jury agreed that White’s capacity was diminished, and convicted him of voluntary manslaughter. He received a seven-year sentence.

  A tumultuous aftermath included public demonstrations and rioting, and the eventual abolition of the diminished capacity defense in California. A sarcastic reporter referred to White’s defense as the “Twinkie defense.” The phrase stuck, and it is still used to refer to an improbable or highly suspect defense tactic. However, no argument was made by White’s lawyers that his diet caused him to commit the murders, only that it evidenced his depression.

  98

  “If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?”