4th 5th and 6th Amendment

13 September

• Writing Motions
  Plain English: write in a way that you talk, and is clear, and avoids legalisms.

  Story about Jerry Spence (WY trial lawyer in leather fringe jacket who represented Imelda Marcos). Patent appeal brief was 1 page, just a picture. He won. Sometimes you can persuade without writing-- don't be afraid of illustration.

  Motions generally ask the court to do something, but you can also use them to educate the court/obtain an advantage/preview some legal or factual issues/prejudice the jury venire (because the media might pick up on it).

  1. Motion filed
  2. Evidentiary hearing, if required
  3. Post-hearing briefing or argument

  You do motions to dismiss, etc., before arraignment. Motions to supress are after.

  99% of all questions are answered in the statutes (Chapter 5). Then there are local rules (Dane County, e.g.). The statutes also say what has to go into the motion, as well. See, e.g., § 971.30 (always say whether evidentiary hearing is required).

  Parts:

  1. Caption
  2. Content
  3. Prayer for relief
  4. Signature block

  Anything unfair, outrageous, or damning can be the subject of a motion. See also § 971.31(2)-(13) for an enumeration of legal issues.

  Think about audience: judge (and which judge), prosecutor, or media and potential jurors. Think also about how you name your client (Mr., 1st name, etc.). Also consider how much info your motion is leaking: do you want to show the complete theory?

  Note that you don't get an evidentiary hearing by default, you must make more than conclusory allegations (there's no summary judgment in criminal cases). The standard is US v. Toro 359 F.3d 879 (7th Cir. 2004): a prima facie showing.

  Consider whether the defendant would need to testify, and also what the downside of losing would be: do we need to think about sentencing at this point, and are you foreclosing issues in federal court, etc. Also: do you have sading to raise the issue? do you need experts?

  Make sure you have a summary of your issue and relief on the first page. Our motions will be 3-7 pages.

  Consider the judge's eyesight: 13pt in body, 11pt in footnotes. 1" margins on all sides. We want something that lends itself to reading and quick digestion. Also, this complies with what you'll need on appeal, if it goes there. Book Antiqua font (not Times New Roman: this is optimized for newspaper, not full page work). Use a font that's called "Book" in some way.

  Signature block is defined in § 971.30.

  Also, there will be a brief, affiavit(s), and relevant documents. If you've got decisions from other jurisdictions, attach them (they may not be in the court's Westlaw plan, and they may not have the reporter at hand).

  "Engage the reader in a single aesthetic moment."

  Don't leave weaknesses out there for the opposing party to use against you: address them up front.

  Make sure it's clear what you are seeking: by all means make sure that the thing you ask for at the end is what you said up front.

• We're only focusing on 3 amendments, but remember that this is what they are: explicit conferrals of individual rights tacked onto a document that creates a sovereign with limited powers.
• Federalism: it is possible to have dual sovereigns coexisting, and this can actually produce a stronger government than just central or just distributed power.
• 4A: privacy and possession.
• 5A: rights of the individual in confrontation with government.
• 6A: rights at (criminal) trial.
• Now there's a lot of overlap between amendments (privacy, e.g., can be found elsewhere, like 3A).
• One reason 7A is less stringent than 6A is that English civil justice had been less offensive to the authors.
• Seminal cases underlying:
  • Semayne's Case (1604), written by Coke. "The hous of everyone is to him as his castle and fortress as well for his defense againse injury as for his repose." From this, we get the knock-and-announce rule.
  • Entick v. Carrington (1765). The sovereign's agents must have some positive authority to authorize entry into a home (e.g., a statute, a settled common-law rule), or else it's trespass.

15 September

• How were these cases selected (i.e., Morrissey and Grayned? We're mostly concerned with things like involuntary confessions, and things of this nature. SCOTUS treats voluntariness of confessions primarily as a due-process question, not a self-incrimination problem. So when we are dealing with statements to police, we're in the field of due process. So that's why whis course counts as Con Law II, and these cases are there because lots of people weren't exposed to these concepts in Con Law I.
• So, 5A due process.
  • Procedural due process: we want to make sure that actions aren't arbitrary, and can at least be explained. We want a uniform system, so that trials are predictable and comprehensible.
    • Notice: what's the issue, and what's at stake (note that notice pre-dates the indictment in some sense: this is part of what vagueness is about)
    • Opportunity to be heard: confrontation, cross-examination, compulsory process, an impartial judge or jury to hear you, right to testify (sometimes only the accused can explain motivation and that would influence a fact-finder; also allocution at sentencing), right to counsel, argument
    • Right to an interpreter (this goes both with notice and opportunity to be heard)
  • Substantive due process: protection of fundamental rights-- are there aspects of life, liberty or property that the government can't take?
    • Can married couples be prevented from using contraception?
    • Can abortion be prohibited?
    • At a high level, there are substantive due process rights, but we argue a lot about whether this or that thing is one of them.
• Oral Argument Story: Father James Groppi, a priest from South Milwaukee, interested in civil rights, becomes an activist. Leads a march on the state capitol about proposed changes to welfare rights; they sit in the legislature, get arrested. He's jailed for contempt of legislature. Habeas in federal court: he had no notice of the contempt charge, no opportunity to be heard.
• Morrissey is about procedural due process: what is the procedure that you're entitled to when your accused of violating your parole?
• Note that what process is "due" is not the same in all contexts. That's Morrissey also: you don't get all your trial rights at a parole hearing, but there is some minimum standard that must be met. Analogously, there are different due process rights in civil cases vs. criminal cases (and small claims vs. more substantial claims). So due process is tied to the interests at stake. Bankruptcy, e.g., is an equitable proceeding, so you don't get a jury trial for that.
• I am going on Monday 9.20