Month: March 2023

Benjamin M. Onosko

Introduction

This article examines the modern police practice of conducting pretextual stops on the motoring public to initiate criminal investigations without reasonable suspicion or prior judicial approval; and its comparison to the British practice of using general writs of assistance in colonial times.  Perhaps the biggest impetus to this article was the author’s own experience with being profiled by police, and then being seized solely so officers could run their drug dog around my vehicle.

In 2013, I was driving home on Highway 95 when I was pulled over for speeding.  Throughout the course of the stop, the officer questioned and accused me of transporting drugs, and sought consent to search my vehicle or bring a drug dog to scene.  When I declined his invitations – realizing no K-9 officer was in the area – the officer was forced to let me go.  But that was not the end of his investigation.

As soon as I set out on my way again, the officer radioed to another officer several miles up the road.  The officer told him to be ready for me, and this time, to have a K-9 respond.  Sure enough, several minutes after my speeding stop, I was pulled over by a K-9 officer; this time for allegedly driving too slow.  After running his dog on my vehicle, I was eventually allowed to be on my way.  And while my ticket for driving too slow would eventually be dropped by the prosecutor without explanation, the indignity was done.  I, like many Idahoans before me, had my personal liberty and autonomy stepped on for no good reason.

The Founding and the Fourth Amendment

The Founders who ratified the Fourth Amendment most certainly had recent controversies on their minds at the time of its passage.  While delving into the history of each controversy of the time is not possible, the debate over Writs of Assistance in Paxton’s case is particularly significant in understanding the context in the minds of these Founders.  For example, the Supreme Court of the United States would later describe the debate in the case as “perhaps the most prominent event which inaugurated the resistance of the colonies.”[1]

Writs of Assistance were one type of general warrant issued by courts to customs officials.[ii]  General warrants had a long history in England and were often used as “little more than a ‘blank check’ to harass people who didn’t fit in.”[iii]  As used in the Colonies, these writs allowed customs officials to seize and search any ships or vessels for contraband goods.[iv]  These writs did not require any showing of particularized (or even unparticularized) suspicion, were good against any citizen, could be executed by any petty officer, and were valid for the life of the King under whose reign they were issued.[v]  The writs also allowed customs officials to share in any profits from the seized contraband.[vi]  The Crown found these writs to be a useful tool in enforcing its customs laws[vii] and customs officials themselves benefited financially.[viii]

King George II died in 1760, signaling the end of any writs issued during his reign.[ix]  When customs officials in Massachusetts sought a court order allowing for the renewal of these general writs, James Otis agreed to argue against their issuance on behalf of the merchants of Boston.[x]  Otis was so opposed to these writs that he resigned his position as deputy advocate general so that he could take the side of the Boston merchants and argue against the writs renewal pro bono.[xi]  In 1761, Otis delivered his famous argument in Paxton’s case.[xii]

A young John Adams was in the courtroom and would later recall that every person in the courtroom who heard Otis’ address went away “ready to take arms against Writs of Assistance.  Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.”[xiii]

Otis decried the writs as “the worst instrument of arbitrary power” found in English law.[xiv]  While accepting the legality of “special writs” (what we would recognize today as a warrant complying with the Fourth Amendment), he argued against the legality of these general, suspicion-less writs which “place[d] the liberty of every man in the hands of every petty officer.”[xv]

Otis raised several specific objections to the writs.  First, that they were general, requiring no showing of suspicion prior to their execution – “bare suspicion without oath is sufficient.”[xvi]  In fact, Otis pointed out that the writs could be executed for “revenge, ill humor, or wantonness.”[xvii]  Otis decried the writ’s “universal” and “perpetual” nature, granting the power to seize and search to every official and allowing them to be “petty tyrants.”[xviii]  The writs were of unlimited geographical origin, were good for the life of the King, and no return on the writ was required.[xix]

To illustrate these problems, Otis cited the example of the case of Mr. Ware.  Mr. Ware was a customs official who was unhappy that a magistrate had hailed him into court to inquire about his violations of the law.[xx]  Upon conclusion of the inquiry, Mr. Ware told the magistrate, “I will show you a little of my power” and proceeded to execute a retaliatory writ upon the magistrate’s property.[xxi]  This case highlighted the colonists’ fears that these writs gave officials unbridled power to conduct discretionary searches and seizures.

Otis was also disturbed that custom officials were allowed to share in the gains from seizures of the contraband, asking, “what reason can there be, that a free people should be exposed to all the insult and abuse. . .which may arise from the execution of a writ of assistance, only to put fortunes into private pockets.”[xxii]  Otis asked the colonists, “Can a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proof of the danger there is in trusting them with any?”[xxiii]

Otis’ argument was not limited to the specifics of Mr. Paxton’s case; his point was much loftier.  These writs “destroyed all our security of property, liberty, and life.”[xxiv]  Otis’ solution to this problem will no doubt be familiar to anyone who has read the Fourth Amendment: “that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.”[xxv]

Otis lost the case and the general writs were renewed by the court.[xxvi]  But despite losing the battle, Otis ultimately won the war when America gained its independence and the Fourth Amendment was adopted, all but extinguishing the general writ of assistance. With such a strong historical basis for our objections to general warrants and writs, a reader might be lulled into a sense of security that no modern court would permit such a power to ever again be given to any officer.

However, the very evils the Fourth Amendment was designed to guard against has not disappeared, it has only changed form.  Now, modern police officers, may seize and search anyone they suspect of any crime so long as they can find one violation of the traffic code.

Pretextual Traffic Stops as Modern Writs

Pretextual traffic stops have many similarities with the general writs of assistance.  While pretextual stops come in many flavors, when I use the term I will be referring to traffic stops initiated by officers for the purpose of investigating the vehicle’s occupants for evidence of some criminal offense, aside from the traffic code violation.[xxvii]  In a pretextual stop, the traffic code violation is not the reason for the stop, it is merely the justification for the seizure of the vehicle.

The true reason for the stop is often the officer’s hunch that a violation of some other law may be uncovered during the seizure.[xxviii]  As any defense attorney could tell you, pretextual stops are most commonly associated with traffic stops made for the purpose of discovering contraband; precisely what impermissible writs of assistance were designed to find. This practice usually plays out in the following way, using an example from one of my cases.

The Probable Cause Affidavit described the stop as follows: “I observed a white Chevrolet with a windshield crack which clearly obscured the driver’s view and made it unsafe to operate the vehicle.  Based on the condition of the windshield I turned around and caught up to the vehicle to initiate a traffic stop for the violation.”  This description would not raise any real concerns, but here is additional detail of what happened in the case.

Two police officers were driving down the road and saw a truck driven by someone they deemed suspicious looking.  The officers made a U-turn and began following the truck.  The following conversation between the officers was then surreptitiously captured on video:

Officer 1:  “Dude with no plate on this truck up here.  And has an interesting looking dude.”
The officers then caught up to the truck:
Officer 1:  “Aw, maybe he has a plate, yeah, Montana.”
Then, after a pregnant pause:
Officer 2:  “Got a crack in the windshield.  I would say it’s obscuring his vision if you want to go that route.”
Officer 1:  “Yeah, why not.  I just got to figure out where I want to stop him.”

Officer 1 then radioed to another officer with a drug detection dog and told that officer where to meet them for the stop.

In that case, as in most pretextual stop cases, the traffic code violation is not what caused the citizen to be stopped, it was his mere “interesting” (read “suspicious”) look.

In this modern version of a writ of assistance, an officer needs only two things before a person is subjected to a seizure and search.  First, a general suspicion of any type of criminal conduct, however strong or weak.  Second, a violation of the traffic code.  Neither of these requirements place any serious restraint on an officer’s unfettered power to seize citizens; just as the requirement that a customs official first obtain a writ of assistance placed no serious restraint on officials.

To begin, the first requirement – a suspicion of some crime – sets no burden at all.  Under current precedent, an officer need not justify or support his suspicion. In fact, this underlying suspicion is not subject to judicial review, having been declared irrelevant by the Supreme Court.[xxix]

While modern supporters of pretextual stops argue that the second requirement – a traffic violation – is what makes this practice “reasonable” under the Fourth Amendment, that argument lacks substance.[xxx]  The requirement that an officer observe a traffic violation prior to conducting a pretext stop is barely a requirement at all given the breadth and scope of traffic regulation laws.

For example, in Idaho there are over 163 statutes regulating driving, equipment, and registration for motor vehicles.  On top of this, there are at least 179 additional ways to violate different subparts of these statutes.  Thus, at any given time you are driving a motor vehicle, there will be around 342 different traffic violations an officer could point to in justifying a stop. ^[xxxi]   And this does not even include city ordinances which give additional justifications for traffic stops.

While supporters of pretextual stops might argue “just don’t break the law while you’re driving,” this is much easier said than done.  On top of these 342 plus traffic violations that allow officers to initiate stops, some of these statutes give officers almost complete discretion to decide what conduct violates the law.  For example, Idaho prohibits drivers from driving in an “inattentive, careless, or imprudent” manner, with the decision of whether conduct is “imprudent” left up to the officer to decide.[xxxii]  To make matters all the more difficult for drivers, courts have been willing to defer to an officer’s subjective belief that a violation may have occurred, without requiring the officer to possess objective facts to support that belief.[xxxiii]

The sheer volume of regulations also makes it essentially impossible for trained attorneys to know what conduct is prohibited, much less laypeople.  For example, did you know that it is illegal in Idaho to shift gears while crossing a railroad track?[xxxiv]  While researching for this article, the author learned that his factory stock Toyota 4Runner is technically in violation of Idaho law because my running-board has two small lamps on it rather than just one.[xxxv]

Upon learning this, I had considered simply disconnecting one of those stock lamps; however, doing so would have automatically put me in violation of a separate traffic code provision.[xxxvi]  Our own Supreme Court and one Deputy Attorney General even poked fun at themselves for not knowing what the traffic code prohibits.[xxxvii]

This demonstrates that it is impossible for any driver to travel any appreciable distance without violating at least one traffic law.[xxxviii]  This has caused some scholars and courts to note, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter.”[xxxix]  When traffic laws have become so pervasive that every one of us violates them every day and so voluminous that even our Supreme Court makes jokes about trying to keep track of them all, surely James Otis’ fear that “the liberty of every man” has been placed “in the hands of every petty officer” has again become a reality.[xl]

Given all of this, it becomes plain that this second requirement for pretextual stops is no real requirement at all.  When properly understood this way, the similarities between pretextual traffic stops and the dreaded general writs come into focus.  Both were or are conducted on persons and vessels in transit, with the usual object of the seizure being the discovery of contraband.  Both involved unlimited duration[xli] and geographic scope.  Neither the writs nor pretextual stops require officers to justify or support their suspicion of criminal activity.  Neither required any specific prior judicial approval.  Both gave officials complete discretion to determine the target and object of the seizure and search.  And just as the writs gave officials a share in the bounty of any contraband found, pretextual stops allow police departments to share in the spoils of any asset forfeiture.

Courts Asleep at the Wheel

The practice of pretextual stops took off in the mid-eighties with the creation of Operation Pipeline by the DEA.  According to the DEA, the program was started after noticing that police officers in several states who were using pretextual stops saw “[t]heir drug and money seizures gr[o]w immediately.”^[xlii]

The program is used to train officers across the nation how to conduct pretextual stops and how to “lengthen a routine traffic stop and leverage it into a search…by extorting consent or manufacturing probable cause.”^[xliii]  The program has been quite lucrative for local law enforcement, who are given an 80-20 split of all seized property.^[xliv]

However, the success of the program necessarily depends upon the violation of a huge number of citizens’ Fourth Amendment rights.  As one California patrol officer put it, “It’s sheer numbers.  You kiss a lot of frogs before you find a prince.”^[xlv]  Of course in this context, the “prince” is a criminal, the “frogs” are every single law-abiding citizen of this State, and “kissing” refers to making a traffic stop to interrogate and search a citizen.

Given our Founders’ distain for the use of general writs, one might assume that any practice by officers which even begins to tread in the same realm as these writs would receive a swift and premature death at the hands of the judiciary.^[xlvi]  Yet that has not happened to these modern-day equivalents.  Pretextual stops have not only not been prohibited by most courts, the Supreme Court has actually embraced the practice with open arms; although often with closed eyes.^[xlvii]

The Court accomplished this feat by simply declaring that an officer’s subjective beliefs are irrelevant when determining the Fourth Amendment validity of a traffic stop.  Not only does this statement contradict prior case law in numerous areas of the Fourth Amendment,[xlviii] the Court would go on to directly contradict itself 18 years later when its goal was to uphold a traffic stop based upon an officer’s subjective beliefs.[xlix]

I imagine Mr. Otis would have something to say in response to the Court’s claim that an officer’s subjective intent is irrelevant to this issue, given that he specifically decried seizures that were “arbitrary,” carried out for “revenge,” “ill humor,” and “wantonness.”[l]  Sadly, it appears the Supreme Court today would give Mr. Ware’s search the thumbs up since his subjective motivation for the search (revenge against the magistrate) is apparently of no concern to the Courts’ interpretation of the Fourth Amendment.

The current arguments in support of pretextual stops ring similar to the arguments made by the Crown in support of its writs of assistance.  British attorney general William DeGrey argued that if not for the writs, colonists could evade their obligations to the Crown without detection because obtaining a specific warrant against citizens would take too much time.[li]

In Paxton’s case, the government argued that allowing these writs was “no greater infringement of our liberty than the method of collecting taxes in this Providence.”[lii]  While these arguments were certainly repulsive to the colonists, the Supreme Court seems to have now fully embraced them.[liii]  And while it is true now, just as it was in 1761, that these practices generate huge slush funds for officials,[liv] that fact should not justify a program that so clearly subjects all of us to unwarranted invasions of our liberty and privacy.

Hope for the Future

Despite the sorry state of the federal judiciary’s view on pretextual stops, hope remains for the citizens of Idaho.  Several states have held that pretextual stops violate their own State Constitutional protections against unreasonable searches and seizures.[lv]

While Idaho Courts have recognized and followed Whren’s command in the Fourth Amendment context, they have not yet squarely addressed the issue of whether our own Constitutional prohibition on unreasonable searches and seizures[lvi] protects us from pretextual traffic stops.

Whether our Courts heed James Otis’ warnings remains to be seen, but for the time being, some hope remains that all Idahoans may be protected against this modern writ of assistance.  Until that time, in the words of Mr. Otis, “I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.”[lvii]

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[1] Boyd v. U.S., 116 U.S. 616, 625 (1886).

[ii] Scott Lewis, An Historical Review of the Fourth Amendment, Wis. B. Bull., August 1987, at 15, 15.

[iii] Id.

[iv] Id. 

[v] The Honorable M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth, 85 N.Y.U. L. Rev. 905, 907-908 (2010).

[vi] Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 501 (1995)

[vii] Michael, supra note 5, at 908.

[viii] Clancy, supra note 6, at 501.

[ix] Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1248 (2016).

[x] Id. at 1249.

[xi] Id.

[xii] Otis, James. Collected Political Writings of James Otis. Liberty Fund, 2015. https://oll.libertyfund.org/title/collected-political-writings.

[xiii] Id.

[xiv] Id.

[xv] Id. 

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Michael, supra note 5, at 907-908.

[xx] Otis, supra note 12.

[xxi] Id.

[xxii] Id. 

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] This is not to suggest that violations of the traffic code are always criminal offenses.  Most are only civil offenses.

[xxviii] Although there are also numerous examples of these stops being used simply in a racist fashion against minorities.  See Ricardo Bascuas, Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches, 38 Rutgers L.J. 719, 761-762 (2007) (Black people being twice as likely as white people to be stopped for traffic offenses, while Hispanic individuals are three times as likely).

[xxix] Whren v. U.S., 517 U.S. 806 (1996).

[xxx] See id. at 811-813 (holding that as long as an officer has observed a traffic violation, no ulterior motive—not even a racist ulterior motive—can make the stop unreasonable under the Fourth Amendment).

[xxxi] See Idaho Code Title 49.

[xxxii] Idaho Code § 49-1401(3).

[xxxiii] See e.g. State v. Kinser, 141 Idaho 557, 112 P.3d 845 (Ct. App. 2005) (upholding a stop for a cracked windshield, despite no statute prohibiting cracks in windshields, based upon an officer’s belief that a windshield crack could potentially inhibit a driver’s vision and potentially cause an unsafe driving condition); State v. Meyer, 158 Idaho 953, 354 P.3d 515 (Ct. App. 2015) (holding that an officer need not show a muffler’s noise actually exceeded the statutory 92 decibel maximum and finding a stop to be reasonable when the officer testified that in his opinion the muffler sounded “louder-than-normal”).

[xxxiv] Idaho Code § 49-649.

[xxxv] See Idaho Code § 49-920.

[xxxvi] Idaho Code § 49-902 (prohibiting equipment not in proper working order); See also State v. Evans, 134 Idaho 560, 6 P.3d 416 (Ct. App. 2000) (allowing for the stop of a vehicle that had one non-working headlight, even though the vehicle was being driven during the day when headlights were not required to be on).

[xxxvii] State v. Randall, Supreme Court Oral Argument, June 17, 2021, available at: https://isc.idaho.gov/appeals-court/archive.

[xxxviii] Although as has already been pointed out, a driver need not even violate a law, an officer’s unsubstantiated claim that a violation occurred is all that is truly required.

[xxxix] Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997).

[xl] Otis, supra note 12.

[xli] Duration, as used here, is in reference to when the seizure may be made, not the length of the seizure itself which still finds some protection under the Fourth Amendment.

[xlii] Operations Pipeline and Convoy, available at: https://web.archive.org/web/20040301202815/http://www.usdoj.gov/dea/programs/pipecon.htm

[xliii] Bascuas, supra note 28, at 761.                        

[xliv] Id. at 762.

[xlv] Id. 

[xlvi] Boyd, 116 U.S. at 635 (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against stealthy encroachments thereon.  Their motto should be obsta principiis.”).

[xlvii] Bascuas, supra note 28, at 764-765 (observing that no member of the Whren or Robinette Court appeared even aware of the existence of Operation Pipeline).

[xlviii] See e.g. Brower v. County of Inyo, 489 U.S. 593 (1989); Florida v. Wells, 495 U.S. 1 (1990); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); Minnesota v. Dickerson, 508 U.S. 366 (1993).

[xlix] Compare Whren, 517 U.S. at 813, with Heien v. North Carolina, 574 U.S. 54, 60 (2014)(holding that an officer’s subjective understanding of what the law is plays a critical role in a Fourth Amendment analysis of whether a traffic stop is reasonable).

[l] Otis, supra note 12.

[li] Neal Nusholtz, The Prompt and Certain Collection of Delinquent Taxes, 95-Sep Mich. B.J. 20, 22 (2016).

[lii] Otis, supra note 12.

[liii] See Carroll v. U.S., 267 U.S. 132, 153 (1925) (accepting argument that not allowing police to act without a warrant would allow criminals to avoid their obligations to the government); and Whren, 517 U.S. at 813 (not finding a pretext stop to be any greater infringement on the Fourth Amendment than a legitimate traffic stop).

[liv] Bascuas, supra note 28 at 762 (noting that police in a town of 2,600 residents seized over $2 million in cash and cars in a two-year period).

[lv] See e.g. Minnesota v. Varnado, 582 N.W.2d 886 (Minn. 1998); New Mexico v. Ochoa, 206 P.3d 143 (N. M. Ct. App. 2008); New York v. Dickson, 690 N.Y.S.2d 390 (N.Y. App. Div. 1998); Washington v. Ladson, 979 P.2d 833 (Wa. 1999). See also State v. Arreola-Botello, 451 P.3d 939 (Or. 2019) (solving some of the problems related to pretext stops by recognizing both a temporal and a scope limitation on officers’ actions during traffic stops).

[lvi] Idaho Const. art. I, § 17.

[lvii] Otis, supra note 12.

K. Jill Bolton

The phrase “pleading the Fifth^” or “taking the Fifth” likely sparks different thoughts for different types of legal practitioners. Advising a client to assert his or her Fifth Amendment privilege against self-incrimination, which has been colloquialized as “pleading the Fifth,” provides an important blanket of protection when questioning under oath exposes them to potential criminal liability. Clients who are involved in a crime or who have been identified as a subject or target of a criminal investigation are wise to exercise this important right.

This article addresses the important Fifth Amendment right to remain silent, which is afforded to all citizens in all judicial proceedings. Additionally, the article discusses the dangerous trend of law enforcement encroaching on those rights, which leads to due process implications. Finally, the article touches on how a recent Idaho Supreme Court decision suggests that federal defendants in Idaho are likely to benefit from greater due process protections than their state counterparts. Ultimately, the author’s goal is to encourage renewed efforts by prosecutors, defense counsel, and judges to preserve these important rights deemed fundamental by both our State and Federal Constitutions.

The Fifth Shields the Innocent

Many people believe that if you’re innocent, there is no need to plead the Fifth. In the confines of a police station or the back of a patrol car in handcuffs, the Fifth Amendment is perhaps the most critical and most fundamental right available to protect against false confessions. Thus, as the Supreme Court in the landmark Miranda decision directed, it must be scrupulously honored.[i] At its core, the Fifth Amendment is meant to protect individuals from the inherent pressures of a police interrogation and government overreach.

Origins of the Fifth Amendment

Among the many fundamental rights enshrined in the Fifth Amendment, the clause protecting individuals from compelled testimony in criminal matters is what is best known to all Americans and commonly referenced in the legal profession as the privilege against self-incrimination. This important privilege was borne from a fervent rejection of the unjust and cruel inquisitorial system in 17^th Century Stuart England and the draconian Star Chamber Oath.[ii]

This ancient criminal procedure forced individuals to take an oath before God to answer truthfully any questions that might be put to them. The person put to the oath is warned that refusal to answer would be deemed contempt of court for which the person could be imprisoned, lashed, or tortured.[iii]

The framers of our Constitution sought diligently to protect against the inquisitorial process by enshrining the privilege against self-incrimination in the Fifth Amendment. [iv]

The Civil/Criminal Juxtaposition of Pleading the Fifth

Asserting your Constitutionally guaranteed right to remain silent is not just for those subjected to police questioning. The privilege against self-incrimination has been recognized in American civil and criminal jurisprudence since the end of the 19^th Century when the Supreme Court first pronounced that the privilege applied to witnesses in both criminal and civil judicial proceedings.[v]But asserting your right to silence has very different implications depending on whether you are involved in civil litigation or a criminal investigation.

In a criminal case, a jury is not permitted to draw an inference of guilt from the defendant’s failure to testify.[vi] In a civil case, however, a jury or administrative body may draw an adverse inference against a party who refuses to testify in response to questioning or evidence offered against him.[vii]

While the stakes can be significant in civil matters, they are enormous in the police interrogation room. In front of police, your statements could be the difference between liberty and incarceration, or even death. The fundamental protections of the Fifth Amendment thus deservedly get the most attention in the context of actual criminal investigations and proceedings.

In its Manual of Model Jury Instructions, the Ninth Circuit encapsulates the Fifth Amendment privilege within the presumption of innocence charge, instructing criminal juries that: “…the defendant has the right to remain silent and never has to prove innocence or present any evidence.”[viii]

The privilege applies in both federal and state proceedings.[ix] Many states, including Idaho, have also passed laws protecting individuals from being forced to incriminate themselves or conveying statutory immunity when testimony is compelled by the State.[x]

In establishing the now well-known “Miranda Rights,” the United States Supreme Court recognized the perils of the privilege against self-incrimination being abused in the police-dominated atmosphere attending a custodial interrogation.

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion … cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.[xi]

Thus, in the confines of police interrogation rooms, the Supreme Court required that the well-known rights be read to the interrogee prior to any questioning. The individual must be advised of the right to remain silent and not answer any police questions. Also, the right to have counsel present during any questioning and, if indigent, to have counsel provided at public expense. Finally, the person must be advised that anything said says can be used against them in subsequent criminal proceedings.[xii]

These now well-known “Miranda rights” have been thoroughly examined in the over 50 years of jurisprudence comprising Miranda’s progeny, establishing some very clear rules for today’s police to follow. Our police officers’ important work in protecting our communities by enforcing our laws is founded upon their sworn oath to uphold and defend our Constitution. Yet, Miranda rights and the Fifth Amendment it was designed to protect too often fall victim to the relentless pursuit of the confession.

Assertion of Miranda Rights

Now enshrined in Miranda’s progeny, the United States Supreme Court has established several bright-line rules. Once an individual in custody invokes her right to remain silent, that invocation must be scrupulously honored, police questioning must cease, and authorities may reinitiate interrogation only after a “significant period of time” has passed.[xiii] A suspect’s invocation of the right to remain silent must be clear and unequivocal.[xiv]

Similarly, once an individual requests counsel, police must stop questioning until counsel has been made available.[xv] Further, interrogation of a suspect who has requested counsel is allowed only when the State shows by a preponderance of the evidence that the accused himself initiated further discussions and knowingly and intelligently waived the right to counsel he had earlier invoked.[xvi]

Once asserted, these rights must be scrupulously obeyed. Yet, through the relentless pursuit of the “confession,” undisciplined police officers, when unchecked by superiors, continue to violate the Fifth Amendment rights of our citizens.

Violations of the well-established Miranda rules, either by failure to read the rights altogether or supplying the custodial interrogee with inadequate advisories, persist today. Worse, however, is the police practice of reading the suspect his Miranda rights, but then ignoring the suspect’s election to exercise his rights. Though Miranda and its progeny Edwards v. Arizona could not have been clearer on the point that once a suspect asserts his right to counsel, all questioning must cease, police today will sometimes persist with questioning the suspect or feign ignorance of the assertion of rights. Similar tact is also sometimes followed when a suspect indicates their desire to not answer questions and to remain silent. Such practices represent a deliberate defiance of the Fifth Amendment and are happening in our communities today.[xvii]

Miranda, Fifth Amendment & Due Process Violations

In pursuit of the “confession,” police routinely engage in trickery and deceit during custodial interrogations. When such practice does not cross the line into providing incorrect legal advice, it is routinely upheld as permissible.[xviii] For example, police may tell a suspect they have found his fingerprints at the crime scene, or that a witness saw them commit the crime and that telling their side of the story will help them.[xix] While lawful, such troubling techniques have been shown to produce false confessions, which are among the leading causes of wrongful convictions.[xx] But when police persist with the interrogation after the right to silence or counsel is asserted, such conduct violates a suspect’s Fifth Amendment rights.

When police violate Miranda (i.e. fail to properly advise the suspect of his rights) or the Fifth Amendment (i.e. failure to scrupulously honor a suspect’s request for counsel, or stated desire to remain silent), the consequence to the State is that it may not use any “confession” so obtained. Should the trial proceed without the confession, the accused will nonetheless be constrained in his ability to testify because the confession could be used by the State to impeach the defendant if he elects to testify.[xxi]

However, a confession found involuntary or the product of “coercion” will be deemed a violation of the Due Process clause and cannot be used by the State for any purpose at trial.[xxii] What constitutes a “coerced’ confession, violative of Due Process, is a fact-intensive inquiry reviewed under a multi-factor totality of the circumstances analysis.[xxiii] This voluntariness inquiry considers “all the circumstances of the interrogation.”[xxiv]

Relevant circumstances may include: a suspect’s age, education, intelligence, physical health, and prior experience with the criminal system. Other factors include the length, location, and conditions of detention, the nature of questioning, and the use by law enforcement of any threats, punishments, or inducements.[xxv] Another important factor is whether the suspect asserted his Fifth Amendment rights during the interrogation and the assertion was ignored.[xxvi] The State bears the burden of proving by a preponderance of the evidence that the defendant’s Miranda waiver and confession were voluntary.[xxvii]

Based on a recent Idaho Supreme Court decision, however, federal criminal defendants in Idaho are far more likely to enjoy due process protections than their state counterparts when police obtain a “confession” after repeated violations of their Fifth Amendment rights.[xxviii]

A Case in Point

Today, well over 50 years since the dictates of Miranda and many years since its progeny, it should shock the conscience that police would nonetheless persist with an interrogation after an individual asks for an attorney or makes clear that he wishes to remain silent. Yet it happens regularly and likely more often than it is penned to a motion to suppress. Perhaps it happens more than the defense bar sees because the diligent prosecutor quashes the effort to use the Constitutionally prohibited “confession” by refusing to charge absent further corroborating evidence. But that it happened to the extent seen in the recent case reviewed by the Idaho Supreme Court should cause all of us concern.

In August 2022, the Idaho Supreme Court reviewed the case of State v. Moore, 516 P.3d 1054 (2022), a case where a murder suspect, subjected to a custodial interrogation, repeatedly requested, and was denied the assistance of counsel. The suspect was confined to a police interrogation room without access to a phone and subjected to psychological techniques designed to wear down his will and force a statement.

Indeed, he was told that if he did not tell police why he committed the crime in which he had repeatedly denied involvement, it would be inferred that he premeditated the murder, and he would be charged with first-degree murder. In his mind, the choice was talk to police or face the death penalty.[xxix] Though the Idaho Supreme Court had previously ruled that such threats would be deemed an involuntary statement violative of Due Process, it seemed to retract this position in Moore, finding only a Fifth Amendment violation.[xxx]

In contrast, the Ninth Circuit has established that threatening an individual during a custodial interrogation with greater punishment if he doesn’t confess violates Due Process.[xxxi] Further, the Ninth Circuit has recognized that repeated denial of counsel in response to the custodial interrogee’s repeated requests was a “tactic designed to generate a feeling of helplessness” which made the suspect a “prisoner in a totalitarian nightmare, where the police no longer obeyed the Constitution, but instead followed their own judgment, treating suspects according to their whims.”[xxxii]

Moore seemed to fit the exact profile of the dystopian nightmare envisioned by the Ninth Circuit. Idaho police repeatedly ignored the defendant’s request for counsel and threatened first-degree murder charges if he didn’t tell them he did what they suggested. The police most certainly generated a feeling of helplessness when the so-called rights police told him he had were ignored. The Idaho Supreme Court found a violation of Moore’s Fifth Amendment rights and that the “confession” was properly suppressed but stopped short of finding a due process violation.

Conclusion

In establishing the now well-known Miranda rights, our United States Supreme Court enshrined our Fifth Amendment privileges and reminded us of the danger of turning our backs on holding police to the standards necessary to preserve them.

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.[xxxiii]

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

[ii] Miranda, 384 U.S. at 458–60.

[iii] Nathan Dorn, John Lilburne, Oaths and the Cruel Trilemma, https://blogs.loc.gov/law/2013/04/john-lilburne-oaths-and-the-cruel-trilemma/ (2013).

[iv] Miranda, 384 U.S. at 459-60 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)); Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).

[v] Boyd, 116 U.S. 616.

[vi] Griffin v. California, 380 U.S. 609, 615 (1965).

[vii] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[viii] Manual of Model Criminal Jury Instructions, United States Courts for the Ninth Circuit, https://www.ce9.uscourts.gov/jury-instructions/node/773 (Jan. 31, 2023).

[ix] See Malloy v. Hogan, 378 U.S. 1, 7 (1964).

[x] E.g., CPLR 4501; Mass. Const. Pt. 1, Art. 12; Idaho Code §§ 19-1121, 1122.

[xi]Miranda, 384 U.S. at 461.

[xii] Id. at 479.

[xiii] Michigan v. Mosley, 423 U.S. 96, 104–06 (1975);  State v. Blevins,108 Idaho 239, 242, 697 P.2d 1253, 1256 (Ct. App. 1985).

[xiv] State v. Law, 136 Idaho 721, 725, 39 P.3d 661, 665 (Ct. App. 2002); State v. Whipple, 134 Idaho 498, 502, 5 P.3d 478, 482-64 (Ct. App. 2000).

[xv] State v. Person, 140 Idaho 934, 938, 104 P.3d 976, 980(Ct. App. 2004) (citing Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)); State v. Cheatham, 134 Idaho 565, 574, 6 P.3d 815, 824 (2000).

[xvi] Id. (citing Cheatham,134 Idaho at 574–75, 6 P.3d at 825); Smith v. Illinois, 469 U.S. 91, 95 (1984).

[xvii] See e.g., State v. Moore, 516 P.3d 1054 (2022) (continued questioning of a suspect after repeated requests for counsel violated the Fifth Amendment and required suppression).

[xviii] See State v. Smith, 162 Idaho 878, 883, 406 P.3d 890, 895 (Ct. App. 2017) (“deceptive police practices do not necessarily create coercion which would render a suspect’s subsequent confession involuntary and excludable” (citing State v. Davila, 127 Idaho 888, 892, 908 P.2d 581, 585 (Ct. App. 1995)).

[xix] Davila, 127 Idaho at 892, 908 P.2d at 585.

[xx] See Innocence Project, DNA Exonerations in the United States, https://innocenceproject.org/dna-exonerations-in-theunited-states/.

[xxi] Michigan v. Harvey, 94 U.S. 344, 345–46 (1990); Moore, 516 P.3d 1054.

[xxii] Id.

[xxiii] Miller v. Fenton, 474 U.S. 104, 109 (1985) (certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned). See also Moran v. Burbine, 475 U.S. 412, 432–434 (1986).

[xxiv] Mincey v. Arizona, 437 U.S. 385, 401 (1978).

[xxv] See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[xxvi] Cooper v. Dupnick, 963 F.2d 1220, 1243 (9th Cir. 1992 (overruled on other grounds by Chavez v. Martinez, 538 U.S. 760 (2003)).

[xxvii] Colorado v. Connelly, 479 U.S. 157, 168 (1986).

[xxviii] Id.

[xxix]Moore, 516 P.3d 1054.

[xxx]State v. Samuel, 165 Idaho 746, 766, 452 P.3d 768, 770 (2019).

[xxxi] See Tobias v. Arteaga, 996 F.3d 571, 581 (9th Cir. 2021) (“Any suggestion by a law enforcement officer ‘that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor’ is unconstitutionally coercive” ) (quoting United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir. 1994)).

[xxxii]Cooper, 963 F.2d at 1243.

[xxxiii] Miranda,384 U.S. at 480 (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion)).

Johnathan R. Baldauf

At least 30.2% of American youth will be arrested by the time they are 23.[i] For parents of boys, the numbers are worse: 23-year-old young men are 2.1 times more likely to be arrested than 23-year-old young women.[ii] Parents with three children (especially three boys) face a near-statistical certainty that one of their children will be arrested. That assertion may be shocking for many, but as Idaho’s incarceration rate (760 per 100,000 in 2021) is higher than the national average (664 per 100,000 in 2021), it is a reality that all Idahoans face.[iii]

These high numbers align with the rise in the American prison population during the last half of the 20^th Century.[iv] These arrests have consequences, even if the charges are dismissed or even expunged.[v]

There are consequences to the taxpayer for processing the case. Defendants (or their family) might have to pay bond agents as the case gets resolved or the person might even have to await resolution of the case from jail, leading to significant costs for video calls, messaging, and commissary.

Video of the event, if recorded and not exculpatory, may be shared, leading to social media outrage. Employment consequences abound.

Given that being arrested is a more common experience for Americans in general, and young people in particular, it is vital that the youth understand their rights when it comes to search and seizure. This article’s goals are two-fold: to briefly review some of the possible causes of the rise in the incarceration of Americans and to highlight specific areas that any person should know prior to an encounter.

America’s High Arrest Rates

The 30.2% arrest rate is a substantial increase since the 1960s, when the rate was at 22%.[vi] The causes of this increase are difficult to determine, especially as the crime rates have not consistently tracked with these increases.[vii] But as arrests and incarceration rates likely share similar causes, a discussion of the high incarceration rates may shed light on why those rates have gone up.

In 2014, the National Academy of the Sciences released a 465-page report on the causes of the high incarceration rates in the United States. [viii] The committee drafting the report found that “the growth in incarceration rates in the United States over the past 40 years is historically unprecedented and internationally unique.”[ix] They found that this growth could largely be attributed to an increasingly punitive political climate surrounding America’s criminal justice policy which occurred in a time of increasing crime and sudden social upheaval.[x]

These changes provided context for the policy choices made across all branches and levels of government that significantly increased sentence lengths, required prison time for minor offenses, and intensified punishment for drug crimes.[xi] These punitive incarceration policies may have had a modest effect on crime rates, but it would not have been large.[xii]

Drug laws in particular became more stringent and were similarly ineffective.[xiii]

The nation began to rely on prisons as a form of social control even though, when “[c]ompared with other areas of social policy that require similar expenditures of billions of dollars, prisons in many states are subject to relatively little oversight.”[xiv]

Worse, those policies may have had a wide range of “unwanted social costs.”[xv] Recidivism, a reduced opportunity for rehabilitation, and a substantial burden on prison medical services resulted. The stigma of being convicted, along with the instability incarceration can cause for a family meant that the costs were not solely borne by those convicted of charges.

To loosely sum up the conclusions of the report, Americans reacted to a rise in crime and substantial social change the 1970s by instituting more punitive formal controls, eventually leading to the policy choices we have today. The committee recommended that since long prison sentences had small crime prevention effects and had high costs, mandatory minimum sentences and long sentences should be reduced.[xvi]

Search and Seizure and Consent

Given the rise in these rates, it seems clear that formal social controls, that is the use of laws and rules to govern behavior, have largely supplanted informal controls, meaning the customs and norms of a culture. In Idaho, we historically had the Idaho Supreme Court’s Repository and now have the iCourt system that allows non-juvenile charges to be viewed by the public. Americans also face the fact that much of their behavior can be put on social media for all the world to see, creating another record.

As these formal controls pervade our system, it becomes much more likely that people will have an interaction with police than in the past. Therefore, understanding the rules of that encounter are vitally important. Knowing how to calmly handle a stressful, and possibly terrifying, experience can reduce the stress for everyone involved.

During any police encounter, the goals are to: remain safe, retain rights, and remember.

The best chance at being safe is remaining as cool, calm, and collected as possible and complying with orders (as opposed to requests). Requests are questions: “Can I get you to step out of the car?” Orders are statements: “Step out of the vehicle.” If in doubt, it may be best to politely and clearly ask if the supposed order was an order.

Rights are retained by asserting them. First and foremost, that means not consenting to searches and seizures. It is not uncommon for what would have been illegal search or seizure to be made legal by the consent of a citizen who should be standing on their rights.[xvii] Those rights have been memorialized and reinforced for a reason.

Additionally, if being interrogated in custody, there is a three-step process. First, you should make clear you are going to remain silent. Second, you should ask for your counsel. A good script is, “I’m going to remain silent and I’d like to speak to my attorney.” Finally, and most importantly, you must actually remain silent.

Note that in this context, “interrogated” generally means simply being asked questions or something that might illicit a similar reaction. “In custody” is a little more complicated, as it does not necessarily require the classic Hollywood scene involving an interrogation room and could also mean simply being detained at the side of the road or on a sidewalk.

These rights should be clearly invoked. An infamous Louisiana appellate case suggested that asking for a “lawyer dog” or, more likely, a “lawyer, dawg,” was ambiguous and equivocal makes clear how important it is to state clearly what you are requesting.[xviii]

By not forgetting to ask for your attorney after actively asserting your right to remain silent, the police are legally required to not re-approach you until you have had the opportunity to speak to your attorney.

The last step is to remember what occurred, both prior to and during the encounter. Given the stress of the situation, it is not uncommon to be uncertain. As soon as possible, write down your recollection to ensure that you have the greatest ability to recall the specifics of the event.

Americans, especially young Americans, face a significant risk of police interaction and arrest. They should be prepared to ensure that their safety and rights are protected in the even that risk becomes a reality.

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[i] Robert Brame et al., Cumulative prevalence of arrest from ages 8 to 23 in a national sample, 129 Pediatrics 21–27 (2012), Hereinafter, “Brame 1.”

[ii] Robert Brame et al., Demographic patterns of cumulative arrest prevalence by ages 18 and 23, 60 Crime & Delinquency, 471–486 (2014). Hereinafter, “Brame 2.”

[iii] Emily Widra and Tiana Herring, Prison Policy Initiative, States of incarceration: The global context 2021, Prison Policy Initiative (2021), https://www.prisonpolicy.org/global/2021.html.

[iv] Compare Brame 1 to Franklin E. Zimring, The Scale of Imprisonment in the United States: Twentieth Century Patterns and Twenty-First Century Prospects, 100 J. Crim. L. & Criminology 1225 (2010).; See also Helen Fair & Roy Walmsley, World Prison Population List (Thirteenth Edition), World Prison Brief (2021), https://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_13th_edition.pdf.

[v] Gary Fields &; John R. Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, Wall Street Journal, August 18, 2014, https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402.

[vi] Brame 1; Christensen, Task Force Report: Science and Technology, Office of Justice Programs, https://www.ojp.gov/pdffiles1/Digitization/174NCJRS.pdf, 216-228.

[vii] See Fig. 2.

[viii] National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014).

[ix] Id. at 335.

[x] Id. at 336.

[xi] Id.

[xii] Id. at 337.

[xiii] See id. at 347-348.

[xiv] Id. at 350.

[xv] Id. at 338.

[xvi] Id. at 343.

[xvii] Consent is an exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973). Consent can also required as a condition of probation and can then only be revoked at a hearing before the sentencing court. State v. Hansen, 167 Idaho 831, 837, 477 P.3d 885, 891 (2020). Officers may rely on the consent of others, including parents, to search areas of a home if the consenting person has actual authority to consent or that authority is reasonably apparent. Inhabitants. State v. Tena, 156 Idaho 423, 426, 327 P.3d 399, 402 (Ct. App. 2014).

[xviii] State v. Demesme, 2017-0954 (La. 10/27/17), 228 So. 3d 1206, 1207.

Jessica A. Harrison

Our post-COVID-19 world is undoubtedly a different world than the one we were accustomed to before 2020. We can self-administer nasal swabs just as naturally as we brush our teeth, our plant collections are robust and thriving, and our favorite restaurants now feature impressive patio dining year-round. But on a much larger scale, the post-COVID world witnessed a significant disruption to the American workforce – especially within the government. The criminal justice system has particularly borne the brunt of the labor shortage.

Labor Shortages in Government

For instance, the Idaho Department of Corrections (“IDOC”) has faced a severe employee shortage since COVID-19.[i] Governor Brad Little even activated 75 members of the Idaho National Guard to assist in IDOC’s operations.[ii] But for a more long-term solution, and in response to this staffing shortage, IDOC increased its hourly rate and began offering sign-on bonuses and retention bonuses every five years.[iii] However, as of Fall 2022, IDOC was still struggling with a 25% staffing shortage.[iv]

The IDOC staffing shortage not only leads to longer workdays for employees, which leads to burnout, but also fewer opportunities for inmates to participate in programming and ultimately parole out of prison.[v] Consequently, some inmates may face longer prison terms.

This is hardly the only way the criminal justice system has been impacted by pandemic labor shortages. Across the nation, public defender offices have struggled with retention and hiring new attorneys.[vi] While public defense generally has a history of high turnover due to low pay and high caseloads, the pandemic only worsened these circumstances. Many former public defenders chose new and different career paths that allowed them to work from home.

Courts across Idaho temporarily held hearings remotely during the pandemic, but when most hearings returned to in-person, attorneys could no longer choose to appear in court from home. And while many civil practitioners can easily meet with clients via Webex or Zoom, the out-of-custody clients of public defenders typically lack access to these software programs, and often do not even own cell phones. Simply put, it is not practicable for public defenders to work from home full-time. And when the pandemic introduced the concept of working from home to attorneys across the nation, many saw this as a significant benefit and incentive to switch jobs.

Criminal Defendants are Especially Impacted

Nobody suffers from a public defense staffing shortage more than criminal defendants. It is well-settled that every criminal defendant has a Sixth Amendment right to competent counsel, even if that defendant cannot afford his/her own attorney.[vii] When many public defenders transition to different jobs, and public defender offices struggle to replace and fill vacancies, criminal defendants often are assigned different public defenders who step in to work the case. And when a public defender is new to the case, the case is often continued (i.e., pushed out) for the new public defender to meet with the defendant, form an attorney-client relationship, and familiarize themselves with the case. This can lead to significant delays in the case, which further exacerbates the delays caused by the pandemic backlog of cases.

These delays are especially concerning for incarcerated defendants. And when an incarcerated defendant’s case is continuously pushed out to no fault of his/her own because multiple public defenders are assigned over the pendency of the case, the higher the risk something falls through the cracks. In fact, in Oregon, civil rights advocates sued the State when Oregon’s largest county had 274 unrepresented defendants due to a public defender shortage.[viii] When criminal defendants are not represented or are assigned multiple different public defenders, they lose faith in the public defense system that already suffers from stigmatization. A common question often posed to public defenders is whether they are even “real lawyers.” The reality is that the vast majority of public defenders love their jobs, work hard, and do the work because they care. But they can only work as hard as resources allow.

The Need for Retention

Thankfully, Idaho is not facing such severe staffing shortages as Oregon. But public defender offices across the state need to be proactive in hiring capable attorneys and retaining talent in an effort to avoid the crisis Oregon is facing. While it may not be feasible to allow all public defenders to work from home full-time, perhaps understaffed public defender offices can allow for one or two workdays a week from home. Ada County Human Resources, in an attempt to incentivize recruitment due to a high number of current vacancies, introduced an Employee Referral and Recruitment Incentive Program.[ix] The program offers current employees (including public defenders, prosecutors, and staff attorneys) a $1,000 referral bonus (which is not insignificant for government employees). And while public defender offices rely on the Board of County Commission for budget expansions, higher salaries lead to increased hiring and retention, which lead to a more smooth-sailing and effective criminal justice system.

At the end of the day, while all corners of the criminal justice system are still facing consequences from the pandemic, it is the criminal defendants who enjoy Constitutional safeguards – specifically a fair and speedy trial with competent counsel – and thus who are most at risk when the system takes a hit. Turnover will always be a reality in public defender offices across the nation. But since the pandemic, it has grown increasingly crucial to better retain and hire public defenders who advocate for the Constitutional rights of a marginalized community. Ultimately, if criminal defendants feel truly advocated for and adequately represented, perhaps fewer public defenders will feel the need to seek employment elsewhere. If we can accomplish this, public defender offices can grow into more career-oriented offices rather than training grounds for trial experience.

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[i] Alex Brizee, Idaho governor activates National Guard as IDOC reaches worst staffing shortage of pandemic, The Idaho Statesman (January 5, 2023),https://www.corrections1.com/coronavirus-covid-19/articles/idaho-governor-activates-national-guard-as-idoc-reaches-worst-staffing-shortage-of-pandemic-yTy4uatTPAjDmq72/.

[ii] Id.

[iii] Id.

[iv] Morgan Romero, Coping with a Cop Shortage: Idaho Department of Correction seeing residual burn out after pandemic,KTVB7 (January 5, 2023), https://www.ktvb.com/article/news/investigations/7-investigates/idaho-department-of-correction-seeing-burn-out-after-pandemic/277-4cf1034b-79fe-4b9e-9fa1-4f299b4e4e7d.

[v] Ryan Supee, After pay boost, Department of Correction sees application spike,Idaho Press (January 5, 2023), https://www.ktvb.com/article/news/local/idaho/after-pay-boost-department-of-corrections-sees-applicant-spike-prison-idaho/277-2156094b-4938-4d70-b056-4eec82b32433.

[vi] Erika Bolstad, Public Defenders Were Scarce Before COVID. It’s Much Worse Now., Stateline (January 5, 2023),https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/21/public-defenders-were-scarce-before-covid-its-much-worse-now.

[vii] Gideon v. Wainwright, 372 U.S. 335 (1963).

[viii] Supra note 6.

Justin A. Bowles

“Justice delayed too long is justice denied.” – Dr. Martin Luther King, Jr., Letters from Birmingham Jail

Introduction

Discovery, the right to have all the evidence the State has, is fundamental to the criminal justice system; it defines the universe of a case and the ground on which the battle of a case will be fought at trial. In the criminal context, and especially in misdemeanor cases, most discovery is provided by the State. The arresting officer will usually write an affidavit of probable cause and a police report. The officer will often wear a body camera and will collect physical evidence. If laboratory testing is required for evidence, the State will also provide laboratory reports. The defendant is entitled to review such evidence when the State decides to charge them with a crime.

In felony criminal cases, defendants are entitled to a preliminary hearing unless indicted by a grand jury, at which the State must demonstrate that there is probable cause to support the prosecution.[i] Additionally, all criminal defendants are entitled to a “speedy and public trial…”[ii]

In misdemeanor cases, there is no preliminary hearing or other set timelines outside of the constitutionally guaranteed right to a speedy trial. Therefore, the pace of a criminal proceeding in misdemeanor cases is often wholly decided by the State through discovery. If the State does not provide timely discovery, the defendant cannot engage in meaningful negotiations or strategize about the case. The foregoing creates a potential for significant unjustified delays unless clear rules provide consequences when the State fails to provide timely discovery.

Idaho Criminal Rule 16

Discovery in criminal cases in Idaho is governed by Idaho Criminal Rule 16 (“ICR 16”). Among other requirements, ICR 16 provides clear timelines to keep criminal cases moving and for the State to provide timely discovery to criminal defendants. ICR  16(b) permits a defendant to file a written request for discovery to the prosecutor. Pursuant to ICR 16(f)(1), the party on whom a discovery request is served must provide a written discovery response within 14 days. If a party does not provide discovery within 14 days, ICR 16(f)(2) states:

Unless otherwise ordered by the court on a showing of good cause or excusable neglect, the failure to file and serve a response within the time required by this rule constitutes a waiver of any objections to the request and is grounds for the imposition of sanctions by the court.

The rule is straightforward. If a party fails to provide a timely response to a request for discovery and cannot show good cause or excusable neglect, the court may impose sanctions. The standard provided by the plain text of Idaho Criminal Rule 16(f)(2) is reasonable. If a party fails to comply with a clear deadline and cannot demonstrate good cause or excusable neglect to justify its failure, then there is no reason why a court should not impose sanctions. The “good cause or excusable neglect” standard weeds out those cases in which a delay is justified, leaving only those cases in which the failure to provide a discovery response should be unacceptable.

However, the Idaho Supreme Court created a burden on criminal defendants before sanctions are imposed on the State. To impose sanctions, a court must also find that “the lateness of the disclosure so prejudiced the defendant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”[iii]

The prejudice standard provided by the Court in Byington sounds reasonable. Ostensibly, it applies to both parties and creates a “no harm, no foul” rule that keeps one party from gaining a windfall. However, such a standard is not based on the text of ICR 16. Additionally, given the way that misdemeanor cases operate in the real world, such a standard will most often redound to the benefit of the State because the State is often the only party providing discovery. The rule already provides a “good cause or excusable neglect” outlet for situations in which a party can show that there is a valid justification for the delay. The prejudice standard allows the State to escape sanctions unless the defendant can prove an exceedingly specific harm.

The prejudice requirement created by the Idaho Supreme Court imposes a heavy burden on defendants to show prejudice and frees the State from any consequences for unjustified delays in providing timely discovery. Unless the defendant can show that their defense is prejudiced, the State is free to delay providing any discovery response, without good cause or excusable neglect, for a long as long as it wants. The State can effectively shelve a case for months without any sanctions.

Such has been the experience in my own practice. Since I started working as a misdemeanor public defender, I have experienced significant delays in getting discovery responses. In some cases, delays lasted months, continuances were permitted to allow for discovery responses, but no discovery responses were provided even then.

I have witnessed firsthand the harms that delays in misdemeanor discovery disclosures by the State can cause in misdemeanor cases. Such delays cause harm to defendants, to the courts, and to our system of justice. However, given the judicially created prejudice standard, such harms are not accounted for when a court decides whether to impose sanctions for discovery violations by the State, even when the State cannot show any good cause or excusable neglect for the delay.

Harm to Defendants

The State’s failure to provide discovery has worked harm on my clients that are not accounted for by the narrow prejudice standard. Criminal defendants suffer many harms during the pendency of a criminal case, which are only compounded by unjustified delays in receiving discovery.

My clients take time out of their lives to call or meet with me, and all I could tell them is that we still have not received the full discovery. My clients remain subject to bond requirements, pre-trial release conditions, and sometimes pre-trial custody, all while the State remains in violation of the clear timelines provided by ICR 16.

The requirements for timely trial preparation and exchanging discovery seems, at times, a double standard. The State can continue to delay, but if my clients fail to attend a pre-trial conference or other hearing, they risk a bench warrant. If my clients fail to meet the conditions of pre-trial release, release for which they must pay a fee, they risk a bench warrant. If my clients cannot afford to post bond, they wait in jail until the State gets around to meeting its discovery obligations. Time is a finite and precious resource. The State wastes the time of my clients when it fails to provide timely discovery because many cases can be resolved soon after I have all the information available to the State.

My clients also suffer under the cloud of a pending criminal case. While the State delays providing discovery, my clients are left with uncertainty, worry, and the stigma of a pending criminal charge. Imagine waiting for months for a legal process you do not fully understand and over which you have no control to run its course. Now imagine that the legal professional appointed to help you through that process must tell you over and over that they cannot resolve your case or determine whether trial is necessary because the entity prosecuting the defendant simply has not provided the evidence it has against them. Can you imagine how frustrating such a situation would be for indigent criminal defendants, many of whom have no experience with the legal system prior to being charged? None of the foregoing harms are accounted for by the prejudice requirement created by the Idaho Supreme Court.

Harm to the Courts

The State’s failure to provide timely discovery responses also works a structural harm on the courts. In Bonneville County, the pre-trial system for misdemeanor cases is conducted between attorneys using written pre-trial sheets. The prosecutor and the defense attorney file a one page pre-trial conference document, which tells the court whether the defendant requests a trial, whether one or both of the parties request a continuance, or whether a plea agreement has been reached. Continuances are agreed to in cases for a variety of reasons. Such a system has its benefits and drawbacks, but one of the unintended consequences is that it has enabled the State to delay providing discovery without adequate judicial scrutiny.

When the State fails to provide timely discovery and cases are continued multiple times, often without explanation by the State, court dockets become bloated with cases that could have been resolved much earlier. Judges are then left to handle routine matters in many more cases than is necessary, which wastes already scarce judicial time and energy. Court dockets are large enough without adding to them unnecessarily.

Harm to our System of Justice

The final harm is abstract, but no less important. The prosecutor in the modern American criminal justice system is imbued with nearly unfettered prosecutorial discretion. The prosecutor is empowered to enforce the law and seeks to hold criminal defendants accountable for breaking the rules of our society. Prosecutors are trustees of enormous government power. And yet, when it comes to ICR 16, prosecutors are permitted to violate the clear text of the rule without any good cause or excusable neglect. And yet, a judge’s hands are tied by a prejudice standard that fails to account for myriad harms such delays cause. How can any system which would tolerate such conduct from those empowered to enforce the law rightly call itself a system of justice?

Allowing well educated and professionally licensed prosecutors to delay discovery for no good reason while holding indigent criminal defendants to strict rules creates a double standard that erodes the integrity of our legal system. The clear text of ICR 16 provides a remedy, but the judicially created prejudice requirement has granted the State a reprieve by imposing a heavy prejudice burden on defendants.

The principle should be a simple one: If the State cannot prosecute a misdemeanor case in a timely fashion, then the State should not prosecute that case. The Idaho Supreme Court should reexamine its precedent regarding Idaho Criminal Rule 16 and the prejudice standard announced in Byington. The State must be held to account for unjustified discovery delays without an additional burden being placed on defendants to show prejudice. The current standard gives prosecutors enormous power to harm the lives of criminal defendants, to slow the operation of the courts, and to erode the credibility of our system of justice. We should abandon such a standard.

Conclusion

We must fundamentally rethink how court created standards provide prosecution-friendly outcomes that work continuing harms on criminal defendants, on the courts, and on our legal system. As officers of the court, as legal professionals, and as trustees of enormous government power, prosecutors must be held to a higher standard of conduct.

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Justin A. Bowles is a public defender with the Bonneville County Public Defender’s Office. Justin grew up in Idaho Falls and is a graduate of Idaho State University and the University of Idaho College of Law. Prior to working as a public defender, Justin worked as a judicial staff attorney in Twin Falls and Ada counties.

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[i] See Idaho Criminal Rule 5.1.

[ii] U.S. Const. amend. VI; Idaho Const. Article I, § 13; see also, Idaho Code Section 19-3501.

[iii] State v. Byington, 132 Idaho 589, 592, 977 P.2d 203, 206 (1998) (quoting State v. Olsen, 103 Idaho 278, 283, 647 P.2d 734, 739 (1982)).

Joseph N. Pirtle

The work of Bar Counsel’s Office is primarily divided into four categories: (1) investigating and prosecuting alleged violations of the Idaho Rules of Professional Conduct; (2) assisting with claims to the Client Assistance Fund; (3) assisting the Board of Commissioners, the Character and Fitness Committee, and the Reasonable Accommodations Committee in admissions and licensing matters; and (4) answering ethics questions.

Grievance Investigations and Discipline

In 2022, Bar Counsel’s Office received 346 grievances against attorneys. We review all grievances to determine if there are any violations of the Idaho Rules of Professional Conduct. If our investigation establishes that there were no violations of the Rules or if there is insufficient clear and convincing evidence to prove that a violation has occurred, the grievance will be dismissed.

If we find clear and convincing evidence of a violation of the Rules, the attorney may receive private discipline in the form of an informal admonition or a private reprimand or, in some cases, formal charges may be filed. If the attorney receives private discipline, the grievant will be informed of the sanction in writing but information concerning an attorney’s private discipline is not released to the public by Bar Counsel’s Office. Grievances resulting in formal charges can involve sanctions ranging from public reprimand to disbarment.

Bar Counsel’s Office filed eight cases seeking formal discipline in 2022. Most of those cases resulted in stipulated resolutions with the attorneys.

Client Assistance Fund

The Client Assistance Fund is available to compensate clients who have suffered damages due to the “dishonest conduct” of an attorney. The claims typically involve theft, embezzlement, or the attorney’s failure to return unearned fees to the client. Bar Counsel’s Office assists the Client Assistance Committee in administering claims, attending meetings, and preparing Findings of Fact, Conclusions of Law, and Recommendations regarding Client Assistance Fund claims. In 2022, the Client Assistance Fund received 25 claims, which is unusually high.

Admissions and Licensing

Bar Counsel is the lawyer for the Board of Commissioners, the Character and Fitness Committee, and the Reasonable Accommodations Committee. In this role, Bar Counsel’s Office assists with admissions and licensing investigations and prepares Findings of Fact, Conclusions of Law, and Recommendations following those investigations. Bar Counsel’s Office also represents the Board of Commissioners in admissions and licensing petitions filed with the Idaho Supreme Court, including requests to waive a particular Idaho Bar Commission Rule and review of denied admissions or licensing requests.

The details of those admissions and licensing matters are confidential under the Idaho Bar Commission Rules.

Ethics Questions

Three attorneys (Joe Pirtle, Julia Crossland, and Caralee Lambert) assist Idaho State Bar members with ethics questions. In 2022, Bar Counsel’s Office answered 1,047 calls or emails from attorneys seeking guidance on the Idaho Rules of Professional Conduct. The most common questions involved conflicts of interest, attorney’s responsibilities upon termination of the representation, and whether attorneys are bound by client strategy decisions.

Assisting attorneys with ethics questions before there is a possible violation or harm to the public is obviously preferable. Ethics inquiries remain confidential in the hopes that Bar members will be more comfortable contacting Bar Counsel’s Office to ask ethics questions. Bar Counsel’s Office does not, however, provide advice on substantive legal issues.

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Gary L. Cooper
Commissioner
Sixth and Seventh Districts

By the time this is published we will be at or near the end of the first quarter of 2023.  However, I am writing this just as the new year dawns.  So, bear with me as I review 2022.  It was not a great year in my opinion.  We lost some important members of the Bar, the stock market tanked causing many to delay plans for retirement, and our beloved University of Idaho suffered an excruciating loss of four students.  However, there was much that was good about 2022, which I predict bodes well for the coming 2023.

Our court system emerged in 2022 from the pandemic stronger than ever in my estimation.  A case in which I was involved was scheduled to go to trial in January of 2022, but was postponed because of another COVID wave.  That was disappointing, but by February or March cases were getting tried and the pandemic backlog was beginning to slowly disappear.  During the year we lawyers continued to take advantage of experience learned during the pandemic which included remote hearings, depositions, and mediations.

Those three uses of Zoom, or other similar platforms, will make litigation less expensive and will vastly improve scheduling flexibility for every lawyer in Idaho who is engaged in litigation.  That is something good which came out of the pandemic.  In December, I tried a jury trial where we presented several witnesses by Zoom.  It was not perfect, but in comparison to canned depositions taken for trial which are too long, too boring, and always slightly out of touch with developments during trial, I think witnesses presented by Zoom are a huge improvement.  Again, that saved our clients a significant amount of money and contributed to more efficient use of the time in the courtroom.

The Idaho State Bar welcomed members to Twin Falls in July for the annual meeting.  It was held at a smaller venue which made the crowd seem larger than it was.  The views from the rim overlooking the Snake River were amazing and the weather could not have been better.  Everybody in attendance was genuinely happy to see each other in person.  The highlight for all in attendance was the presentation of the Distinguished Jurist Awards to the Honorable Candy W. Dale and Honorable Christopher M. Bieter.  Equally enjoyable were the Distinguished Lawyer Awards to J. Ford Elsaesser, Trudy Hanson Fouser, and William L. Mauk.  The only surprise was that these distinguished lawyers had not received this award earlier.

It was evident that part of the strength of the Idaho Bar is that we do interact with each other in person outside of the courtroom.  The bonds created by personal contact are priceless.  Celebrating the careers of this year’s Distinguished Jurists and Lawyers with my fellow bar members was one of the year’s most memorable highlights.  It was also inspiring to hear about the Outstanding Young Lawyers who received awards.  I am convinced the profession is in good hands going forward after hearing about their accomplishments.

I do not want to over emphasize “in person” meetings.  There is a place for remote participation in our meetings and we need to encourage and improve how that participation is made available to the members of the Bar.  I was initially resistant to remote participation because of how much I value “in person” contact with other lawyers.  However, after listening to several presenters over this past year and hearing from one of my fellow commissioners who has a young family, I am changing my mind.  I now believe to advance the goal of inclusivity, which is a commitment each of us needs to make, we should consider and include remote participation for all meetings.  I am convinced this will aid us in our efforts.

The 2022 Roadshow was another highlight for me.  My fellow commissioners and I traveled to all seven judicial districts and met with members of the Bar from each of those districts.  We watched as the members of each district presented deserving members with the Professionalism Awards and Denise O’Donnell Day Pro Bono Awards.  I enjoyed the presentation of the Richard C. Fields Professionalism Award to Andrew Brassey.  He is a very deserving recipient of this prestigious award.  I met many lawyers at the roadshow meetings who I had not previously met.  Each of them was eager to serve their local bar association, participate in its activities, and they all were excited to be practicing law.  That was encouraging and perhaps a good sign for the profession in the coming years.

During 2022 we lost some memorable lawyers, three of whom I had the privilege of knowing very well – Bob Alexander from Twin Falls, Bill Olson from Pocatello, and Mark Nye from Pocatello.  Bob Alexander always seemed genuinely happy to see me when I stopped by his office in Twin Falls.  He was a really good lawyer and a really good mediator.  I practiced with Bill Olson and Mark Nye for 23 years before I opened my own office.  I spent many memorable days in the field hunting and fishing with Bill.  He was always happy to make room for the kids and the dogs on our adventures which made it a lot easier for me to justify why I was hunting and fishing on the weekends.  Mark Nye was one of the smartest guys I ever met.  His dry sense of humor left me wondering what I had missed in the conversation more times than I care to remember.  In his later years he did so much for Idaho with his service in the Idaho Senate and his service to Idaho State University.  Each practiced law for a long time, improved the profession while they practiced it, and made me a better lawyer along the way. I will miss them.  I know I am not alone.

For every Idaho Vandal out there, the year ended in a dark place.  Idaho law enforcement agencies were criticized by the pundits so mercilessly that most of the rest of the country just assumed that they were not up to solving a horrible crime which occurred in Moscow before Thanksgiving.  But when the probable cause affidavit was published early in January 2023, Idahoans rightfully took pride as the pundits changed their tune and called local law enforcement “geniuses” for their diligent investigation and use of modern technology.  I am confident that the rule of law is alive and well in Idaho.  Our judicial system benefits from an independent judiciary and highly competent prosecutors and defenders who will assure that the guilty are held accountable and the innocent are vindicated.  As lawyers we should take every opportunity to reinforce this with our friends and neighbors.

I am glad 2022 is in the rear-view mirror, but I am confident 2023 is going to be a great year to live and work in Idaho.  I hope everyone who reads this will join us in person or by remote means at the Annual Meeting in Boise this July.  See you then.

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