Category: Digital Advocate
Pith and Elegance: Crafting Balanced Paragraphs
Some of my early essays in this column covered ways to make paragraphs better.[i] But it’s been a while since I returned to the idea of constructing good paragraphs. If you’ve been a long-time reader of The Advocate, you know tips for making strong paragraphs like sentence length, transitions, cohesion, and unity.
But what about balance? Or style? How do all these concepts come together?
Legal writing needs to function well, but it doesn’t need to be boring or so utilitarian that the reader can’t enjoy reading at times. So, let’s look at some way we can balance the need for function but also add occasional panache to our paragraphs.
My favorite analogy that describes the legal reader is that she is a juggler.[ii] It goes like this: “Most competent jugglers can juggle two and three balls with little effort. Likewise, most legal readers processing a sentence can keep two or three ideas aloft in their minds before the period cues that the sentence has ended and the ideas presented can finally be integrated. But things get risky from there.”[iii]
Trying to juggle too many balls, like trying to process a sentence with too many ideas packed into it, is taxing.[iv] And eventually both the juggler and the reader will drop something. Now for jugglers this isn’t bad, but when we are trying to convince our readers that our position is sound, causing them to drop an idea is bad. Indeed, “the reader will hate you for making her work so hard.”[v]
So, using shorter sentences with fewer ideas packed into them ensures that the reader can comprehend the ideas and still have the brain power to do the critical legal reasoning we are asking of her.[vi]
But Variety Does, Too
Prose sings when it has “variety in sentence length and structure, not adhering to strict medium-length-sentence-only rules.”[vii] To harken back to a favorite example I shared years ago: “This sentence has five words. Here are five more words. Five-word sentences are fine. But several strung together become monotonous. Listen to what is happening. The writing is getting boring. The sound of it drones. It’s like a stuck record. The ear demands some variety.”[viii]
Did your mind start to drift because the sentences sounded so staccato? Again, not so critical when perusing this column, but using all short sentences is another sure-fire way to make your legal reader hate you.
So, how do you build paragraphs that allow the reader mental space to do legal reasoning yet keep her interested in the prose? By creating a balance.
First, the best paragraphs start with both a short word and a short sentence. Changing from heavy, long transitions to short ones “can lighten your writing overnight, almost as if you were oxygenating your style.”[ix]
One-word transitions followed by an easy-to-grasp assertion in the topic sentence help the reader for two reasons. One-syllable transitions (but, yet, and, nor, so) create a tempo that quickly shows the logical link between the last and current paragraph without creating an overload for the reader.[x] And short topic sentences quickly give the reader the context that will help her see the logic and reasoning in the paragraph.
While legal readers prefer short sentences, paragraphs can build.[xi] Longer sentences can add elegance, eloquence, and style to writing.[xii] That’s not to say that you should strive to simply add words to the sentence in the middle of a paragraph. In fact, sentences full of excessive adjective and adverbs, clichés, overdeveloped metaphors, or pretentious vocabulary can lead the reader to pay attention to the writing itself instead of the ideas and reasoning the writing needs to convey.[xiii]
So, if extra words don’t help, what does? First, never lose sight of the function of legal writing: to be clear, competent, readable, and precise.[xiv] When in doubt about whether writing is too much, simply don’t. Always err on the side of function. But, some subtle techniques used sparingly can add a touch of style.
Alliteration & Assonance: the repetition of vowel or consonant sounds.[xv]
Cadence: the rhythmic flow, like the beat of music.[xvi]
Parallelism: the use of similar grammatical structures in pairs or series of related words, phrases, or clauses.[xvii]
Onomatopoeia: words that represent sounds (these can make writing pop!).[xviii]
Metaphor & Simile: direct and indirect comparisons (but only if they are fresh or insightful).[xix]
And, occasionally joining two closely related sentences into a single, longer sentence can add some sophistication to your writing.[xx] When two sentences are about the same person (party or court), shift the one to a dependent clause to add some elegance.
Consider this example from a recent Idaho Supreme Court opinion:[xxi]
On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares. It concluded that substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.
A simple shift could help the flow and eloquence:
On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares, concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.
Or look at this possibility:
Concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares, the district court affirmed the magistrate court’s valuation of the BSA share on intermediate appeal.
End with Pith
Finally, end the paragraph with another short, easy-to-read sentence. Not only does this sum up the ideas in the sentence, it allows the reader an opportunity to check her understanding of the content in the paragraph. And, as an added bonus, you can exploit a position of emphasis with a strong sentence.[xxii]
Connect the Branches
We all want our writing to interest the reader. So perhaps take this image as the parting message. Make your paragraphs shaped like Idaho’s state tree: The Western White Pine. These trees are small at the top, grow wider as they descend toward the forest floor, then narrow again as the trunk and the ground meet.
Tenielle Fordyce-Ruff is a member of the Idaho State Bar and an Associate Clinical Professor of Law at Sandra Day O’Connor College of Law Arizona State University.
[i] Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part I, 56-Sep Advoc 58 (2013); Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part II, 56-Oct Advoc 62 (2013).
[ii] Andrew M. Carter, The Reader’s Limited Capacity, 11 LJALWD 31, 31 (2014).
[v] Id. at 32.
[vi] Id. at 50.
[vii] Id. at 227.
[viii] Tenielle Fordyce-Ruff, Robust Writing: Crafting Better Sentences, 58-May Advoc 60, 61 (2015).
[ix] Ross Guberman, Point Made 226 (2d ed. 2014).
[x] Id. at 227. For more on transitions see Tenielle Fordyce-Ruff, Connections Count Part I: Generic Transitions, 60-Aug Advoc 46 (2017) and Tenielle Fordyce-Ruff, Connections Count Part II: Orienting & Substantive Transitions, 60-Sep Advoc 48 (2017).
[xi] See, Tenielle Fordyce-Ruff, Robust Writing; Crafting Better Sentences, 58-May Advoc 60, 66 (2015).
[xii] Ross Guberman, Point Made 235 (2d ed. 2014).
[xiii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 149 (3d ed. 2009). For tips to help reduce excessive words see Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48 (2013) and Tenielle Fordyce-Ruff, Three Tips for Concise Writing 60-Oct Advoc 56 (2017).
[xiv] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 148-49 (3d ed. 2009).
[xv] Id. at 150-51.
[xvi] Id. at 151-52.
[xvii] Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48, 49 (2013).
[xviii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 158-59 (3d ed. 2009).
[xix] Tenielle Fordyce-Ruff, Adding Eloquence to Your Legal Writing with Figures of Speech, 56-May Advoc 48, 48 (2013)
[xx] Want more on joining independent clause correctly? See Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part I: Joining Independent Clauses, 54-Feb Advoc 44 (2011) and Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part II: Using Punctuation within Sentences, 54-Apr Advoc 43 (2011)
[xxi] Lamm v. Preston, 2023 WL 125250 at *4 (Idaho January 9, 2023).
[xxii] Readers pay more attention to information just before or just after a break in the text. Mary Beth Beazly, A Practical Guide to Appellate Advocacy 229 (5th ed. 2019).
State of the Judiciary Address
Chief Justice G. Richard Bevan
Delivered to the Idaho Senate and Idaho House of Representatives on January 18, 2023.
Have you ever considered that Idaho’s courtrooms are the only places in the state where our citizens can witness all three branches of government in action at the same time? From the application of the laws passed by you, to the enforcement of our state’s laws by the executive branch, to the courts’ administration and interpretation of the laws, these proceedings affect Idaho’s people in profound ways.
I am so grateful for how Idaho’s judges manage these important moments in people’s lives. They, together with the attorneys and staff who labor there, ensure that the promise of justice for people is not merely a slogan, but a reality.
There may be some here who have never visited an Idaho courtroom. I also recognize that a few of you are attorneys. Some of you may have served as jurors or had cases before the courts yourselves. As the people’s representatives, I invite and encourage you to visit the courthouses in your own districts, to see the amazing work that takes place in these government buildings every day.
Idaho’s Judicial Branch fulfills specific duties secured by Idaho’s Constitution, most prominently Article I, Section 18: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.” Our courts fulfill these responsibilities in a variety of circumstances: hearing prosecutions for crimes from petit theft to murder, giving children new hope through adoptions, resolving multimillion-dollar business or probate disputes, and managing contentious breakups of families. Many of these are very demanding and stress-filled events.
A participant in Idaho’s constitutional convention in 1889 observed: “[I]f there is any place in our whole system where politics should be left out of an office, it is in that of the supreme court of the state.” For this system to work correctly, our judges cannot make decisions based on politics, popularity or the public’s wishes, no matter how forceful the drumbeat of the populist band. We construe the law as written. As Chief Justice Roberts has said, the role of a judge is to call balls and strikes; we are not to pitch or bat. Judges simply must follow the rule of law — which applies to us in the Judicial Branch the same as to anyone else in this state. Sometimes this means we reach unpopular conclusions that raise questions. But this is what our Constitution demands and what our judges provide: justice based on the rule of law, no matter the judge’s personal views of the legal principle being applied.
The Idaho Supreme Court’s rulings sometimes draw the most attention, but nearly all the courts’ work is done in Idaho’s local courtrooms — in places like Bonners Ferry, Soda Springs, Driggs, and Weiser. Our 150 magistrate and district judges toil across more than 120 courtrooms in Idaho, rendering decisions based on an evenhanded application of the law. Each of them makes sacrifices for a career in public service.
A judge and court staff must keep the thousands of cases moving while treating all parties without favoritism. And their work does not stop at the courtroom door: Judges volunteer to lead treatment courts and provide education in their communities.
For judges to deliver on all that I have described is no simple task. The job of a judge has become increasingly fraught. The need to remain impartial means it can be isolating work. And personal safety is a topic increasingly on our minds.
President Dwight D. Eisenhower said, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Unfortunately, we live in an age when those who object to the balance in our fair and democratic republic seem increasingly disposed to tearing it down. You see it in your own communities. This climate affects the judiciary in increasingly direct and dangerous ways.
We judges understand that disagreement with our decisions is part of the landscape in which we operate. But when disagreement becomes personal, to the point of threats against personal safety and security, with individuals publishing our private information online, or coming to our homes for face-to-face confrontation, which I and other Idaho judges have experienced, a line has been crossed that must be reinforced — and reinforced convincingly.
We now see protests at judges’ homes meant to, I suppose, disturb their peace, to scare them into submission or to sway their rulings. Some may see this as a means to undermine the core of the rule of law. In some circles the hue and cry has escalated to threats against the lives of judges, including justices on our nation’s highest court. In Idaho, we see veiled threats made online against the courts.
The judges to whom these threats are directed are simply doing their difficult job of making decisions within an established framework of law, regardless of their personal feelings about those laws. These interactions at their homes, at their places of respite and peace, are not just an affront to the rule of law, but also a danger that we ask you to address. Indeed, we have become sadly aware in the recent past of a judge in Wisconsin who was murdered, and judge’s family members in New Jersey and Illinois being killed.
These circumstances deter otherwise talented individuals from becoming judges. Last spring, we surveyed members of the Idaho State Bar about judicial service as a career. Among their most common concerns about becoming a judge was our increasingly polarized political environment. Among all the bills you consider this session, please support any legislation that says two things: (1) the independence of the judiciary must remain inviolable, and (2) judges’ safety is paramount.
Judicial work goes beyond hearings and trials. The job description is about resolving people’s disagreements, while also supporting growth in the people we serve, and developing healthier communities.
One of our deputy trial court administrators recently picked up a lunch order. The manager at the restaurant identified herself as a former drug court participant and said how grateful she was for our judges who gave her a second chance. Her life change wasn’t from a one-and-done hearing before a busy judge. It involved attention and investment by a judge who volunteered to work extended hours, in addition to her or his standard caseload, toiling in early mornings or late nights, to intervene directly in that person’s life and improve her outcomes.
With all this in mind, one of the most important requests I bring you this year is for a salary increase for our judges. Judicial compensation by law is set separately from that of other state employees, and thus requires both substantive legislation and an allocation from the General Fund. Money for a judicial salary increase was appropriated last year, but the substantive statute was not updated to allow it to be paid. This left judges the only state employees not to receive a change in salary in 2022.
Only attorneys who have held a license to practice law for at least five years can seek to become judges in this state — the requirement is at least 10 years to become a district or appellate judge. In all cases, they must have also been a legal resident of Idaho and a member of the Idaho Bar for at least two years. This means our pool of potential new judges comes exclusively from Idaho.
Compensation — particularly, compensation that is more competitive with what an experienced Idaho attorney can earn in today’s market — was also among the important concerns raised in our survey of the Bar. For district court openings in 2022 we averaged just five attorneys per opening. With no disrespect to those who applied, this is simply inadequate. Indeed, our neighbor Utah’s judicial compensation commission is recommending a 10% pay raise for Utah judges based on the limited number of lawyers applying for judgeships, where the applicant pool has shrunk by more than half since 2011.
Further complicating the situation is the economic backdrop. After the workforce uncertainties of the past three years, our branch is not the only part of government grappling with how to keep positions competitive. In some counties that have granted pay increases, certain attorneys are paid as much as or more than the district judge in whose courtroom they appear. This discrepancy affects our ability to recruit highly qualified attorneys to the judiciary.
I ask that this session you consider legislation on judicial compensation that helps maintain a highly qualified and experienced judiciary.
As the third branch of government, Idaho’s judges must be independent, but we believe strongly in collaboration to serve the public. One example is the work of the Idaho Behavioral Health Council, which I will speak to later. Another example is our partnership with each of Idaho’s 44 county governments to conduct the day-to-day work of the courts. Behind each of our access to justice services, you will find dedicated court staff who process filings, develop the record, offer translation, provide security, and perform too many other duties for me to list. Increasingly, we see challenges in filling court positions, and in keeping experienced staff who find less stressful, more lucrative opportunities elsewhere.
Though our courts are a “unified and integrated judicial system for administration and supervision by the Supreme Court” (Idaho Const. art. V, § 2), we strive daily to support our county partners who have to provide court facilities. For example, when counties upgrade or renovate courtrooms, the Supreme Court provides certain equipment to ensure all courtrooms have consistent and appropriate technology to preserve the official court record, to present evidence and to manage remote proceedings when needed.
Included in these technological advances is a new system we are offering to counties that will allow courts to oversee the summoning and managing of juries more efficiently. Historically, counties have selected, purchased, and managed their own jury systems. The result is that Idaho’s citizens who are summoned to be on juries have disparate experiences and services depending on what their county can fund. Some counties have been able to provide simpler online and phone systems for jurors; others have not. Some counties have been able to text status updates to jurors; most have not. The Court’s jury management system, offered to all counties, can provide efficiencies, and simplify the process for all Idahoans called as jurors.
Many counties are now interested in using our solution as their own systems are being decommissioned, and we are offering this solution to the counties at no charge. You have a request before you this session to fund added services that will improve the options available to our counties through this advancement.
Smooth trial management helps us continue to address our case backlog. In calendar year 2022, we held over 20% more jury trials than in 2021, and over 30% more jury trials than in 2020. We have made particular headway on felony criminal cases. Statewide, we closed 12,700 felony criminal cases in 2022, more than 1,000 more than we closed in 2020.
I advised when I last spoke to you that it could take a couple of years to fully address the effects of the pandemic. I’m pleased to share that our courts are diligently addressing these circumstances. Our courthouses hosted as many trials in 2022 as they could arrange with the resources available. Mediation has been in high demand to resolve both civil and criminal cases. Some courts have found more success than others, and some had little backlog, putting them in a better place to start with. All are making noble efforts to resolve these pending cases.
Modern technology helps us move cases along, and it brings continued benefits for court users. “Access to justice” means three things for every person facing a legal issue. First, they are able to secure their rights under the law; second, they can be part of a fair process to resolve claims; and third, they receive a timely and impartial resolution of their case.
In the past, when we’ve talked about access to justice we’ve talked often about actions at a physical courthouse: ADA accommodations, language services, and on-site assistance for people representing themselves in court. Technology now offers more ways to make court access easier and less disruptive — and the people of Idaho expect us to use it.
A quick example are remote hearings done over video. Consider a single parent who may need to secure a babysitter or miss work for a 15-minute hearing — or a farmer in the field whose day is interrupted by that short court appearance. In both cases, thoughtful use of videoconferencing makes court more convenient while maintaining each person’s rights and options.
With video, interpreters can now help litigants from afar. Self-represented people get help from our court assistance offices who review their legal documents over email. And our Guide & File service helps those self-represented parties understand and submit certain filings without ever having to enter a courthouse.
The Supreme Court is rescinding the last of our emergency orders from the pandemic, but remote proceedings as a courtroom tool are here to stay. Earlier this month, we issued an order extending our current directives on remote proceedings while we study long-term rules and procedures. I look forward to updating you on what those become.
With these technological innovations, security for the courts’ digital court records is a constant concern. Cybersecurity requires vigilance to protect the courts from threats both local and international, as conflict in other parts of the world can lead to an increase in cyberattacks against governments within the U.S. Online tools to impersonate people, to steal their identities and cause chaos are only becoming more refined and accessible.
Our Information Technology Division stays hard at work installing better protections for our computer-dependent court system and its electronic records. Our digital security applications have successfully rejected the threats so far, maintaining the steady operation of the courts and the safety of our data. But cybersecurity risks are ever-changing, and the resources required to fight them are ongoing.
The primary way we pay for all our technology needs, including the advances just mentioned, is through the Court Technology Fund. It is financed through fees this body has imposed in criminal and civil court cases. But as the evidence now shows, and as my predecessors have noted through the years, running a court department with a user-funded system is unworkable. As a result, the Court Technology Fund now faces unprecedented challenges. Technology costs in the past five years have risen an average of 9% each year. That’s nearly 50%. Meanwhile, in the last three years in particular, the court fines and fees that support this fund have declined an average of 5% each year. That’s over 15%.
These increased expenses are not limited to those associated with holding court remotely. They include cybersecurity protection and computer equipment for our local clerks and judges, not to mention cost increases of as much as 30% in software licenses and credit card processing fees. The technology fund also pays the salaries for our court technology employees, which have increased in the recent past as well.
The Idaho Supreme Court is working with a third-party consultant to reassess our technology costs and develop a stable, efficient method to fund them. I look forward to when I can bring you that long-term plan. Until then, we seek your help to provide short-term support for the Court Technology Fund and its important essentials. This includes a request for one-time dollars to supplement our current technology needs, and a request to move three key information technology positions from the Court Technology Fund to the General Fund.
One other funding change is already in the making: When parties submit documents for filing, our e-filing software provider charges a fee for processing each civil filing through what are called “electronic envelopes.” We have covered the charges for these envelope fees through the Court Technology Fund. Now, the fund cannot continue to pay for these expenses as a subsidy for civil litigants. Last year the Legislature provided one-time funding for these fees while we determined a solution. Beginning in July this year, civil filers will pay this fee at a cost of no more than $5 per envelope. This fee will be a recoverable cost of litigation through court rules, and there will be no such fee associated with criminal filings.
While I have focused on our challenges thus far, I am also pleased to report on our successes.
Treatment courts provide support, supervision and accountability for people in the justice system with significant substance abuse and mental health issues. Beyond just imposing consequences, these courts help participants achieve stability, sobriety, and become valuable members of their communities.
Idaho is a national leader in the treatment court space. In what is now our twenty-fifth year since our first treatment court was launched in Kootenai County, we continue to evolve and improve them.
Various drug, veterans, DUI and mental health courts are now available in 86% of Idaho’s local courthouses. Lives change and continue to change, as nearly 500 people graduated from treatment courts in the 2022 fiscal year, and 36 drug-free babies were born to mothers participating in those treatment courts — statistics that I find delight in reporting. The ripple effect of these transformations goes well beyond the literal cost savings in corrections or to our societies from reduced drugs and crime. These benefits are profound and immeasurable for these graduates, their families, friends and communities. I invite you to attend a graduation in one of these courts to witness for yourselves the impact these courts have.
This past year, the Supreme Court adopted rules to support these courts. The rules provide uniformity for our adult treatment courts while still allowing for local variations in practice. This exercise was truly a community effort, with input from judges, our Treatment Court Committee, local stakeholders and members of the public. We hope the rules will lead to even greater success in these courts – providing good options to avoid incarceration when feasible.
In addition, the judiciary continues to support the mission of the Idaho Behavioral Health Council, our collaboration across the three branches of government focused on better solutions for those in this state who live with mental illness and addiction.
One piece of the Council’s work that the Judicial Branch directs is an exercise that brings together stakeholders from across a community’s behavioral health and justice systems to better understand how those systems overlap. These discussions lead to solutions that address gaps in behavioral health services.
We have previously relied on national facilitators to lead these exercises. In an important development, we now have skilled Idaho facilitators who can conduct this work, leaving us more flexible and capable of deeper conversations on potential gaps. As this continues, we’ll be able to see the overlap in what communities need for behavioral health training and resources — data that I hope will also aid your own decisions on funding and policy.
As you’ve seen, the work of the courts is wide-ranging and weighty. President Andrew Jackson once expressed: “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” I wholeheartedly agree and ask your support of that objective. I hope today I have helped each of you better understand the work of our branch. With your support, we will continue to accomplish our duty of delivering fair and reasoned justice every day.
Idaho Supreme Court Chief Justice G. Richard Bevan was appointed to the Court in 2017 and became chief justice on January 1, 2021. He is a director on the board of the National Conference of Chief Justices. Previously, he served a long career as an attorney and later district judge in the Fifth Judicial District. Chief Justice Bevan received his undergraduate and law degrees from Brigham Young University.
An Interview with Justice Robyn Brody
Sarah E. Tompkins
In recent years, the Idaho Supreme Court has been tasked with deciding issues that have a wide-ranging impact on the law in Idaho – many of these resolving issues of first impression. In doing so, their decisions reflect a deliberative, intentional approach to the manner in which the Court approaches cases and issues. It seems, at least to me, that this is a historic moment for the Idaho Supreme Court, marking a time where clearly defining the scope of appellate review, remaining mindful of the importance of preservation of the issues, and providing a clear understanding of the full rationale behind the results in every case has clear primacy.
As someone who tries to follow trends in appellate law – both from the United States Supreme Court and from Idaho’s appellate decisions – I had seen articles, interviews, and read portions of the speeches that united States Supreme Court justices had given. Some of those pieces gave me a changed perspective that caused me to revisit my own practices on both the appellate and the trial level. Selfishly, I was hoping that there might be a chance to pose some of those same large, overarching questions of jurisprudence to a member of the Idaho Supreme Court. I was both surprised and delighted when Idaho Supreme Court Justice Robyn Brody agreed to sit down with me and answer some of those questions.
Justice Robyn Brody is presently the Idaho Supreme Court’s longest serving Justice on the Court and is currently the only Justice who was seated on the Court after being elected by the people of Idaho. Prior to joining the Idaho Supreme Court, Justice Brody practiced law in the Twin Falls area for almost 20 years. When Justice Brody was elected to the Idaho Supreme Court, she became only the third woman to ever sit on Idaho’s highest court.
During her election campaign, Justice Brody focused on the desire to bring a tenor to the Court that emphasized objectivity and restraint in its dealings with the lawyers who argue before Idaho’s appellate courts. This mission likely came as no surprise to those who knew her as an advocate in the Magic Valley. Prior to her service on the Idaho Supreme Court, Justice Brody had a reputation within the legal community for her civility and collegiality. As a result, in 2014, Justice Brody was the recipient of the Idaho State Bar Professionalism Award for her district.
In her role as Justice on Idaho’s highest court of last resort, Justice Brody has authored nearly 150 majority opinions in her six years as an Idaho Supreme Court Justice. She recently sat for a conversation with me and shared her insights about the law, appellate practice, the role of the courts, and what she hopes her own legacy might be someday as an Idaho Supreme Court Justice.
If you could give three pieces of advice to someone who was preparing for their first oral argument on appeal, what would those be?
The first piece of advice is to make sure the advocate understands what an appeal is. An appeal is all about legal error and an appellant has to be able to identify what the error is. The second thing they have to be able to identify is the lens through which the appellate court actually looks at and reviews that error – this is the standard of review on appeal. In connection with understanding and applying the standard of review, a litigant also has to ask, “What am I asking the appellate court to do about the error, and can the court do something about this error?” If you start with these initial considerations, you are off to a great start.
Another thing I would advise attorneys to do, especially if they have never done an appeal before, is to watch other oral arguments – particularly the State Appellate Public Defenders and the Deputies Attorney General who appear frequently before the appellate courts. They really understand what appellate advocacy is and have a rhythm with the court. I think their arguments are very well done and would help any attorney navigate an appellate argument.
Finally, I would say that you can’t overprepare. Really understanding your record, especially if you didn’t handle the trial proceedings in the first instance, you need to be intimately familiar with what happened. On appeal, we are picking up the cases much like we are picking up a banker’s box never having seen its contents before. As a Justice, I know that I don’t know the case like the attorneys do because I have argued as a practitioner and as a Justice I can’t know the record like the attorneys do. Sometimes we wonder or have questions about what happened or why something happened. I love it when an attorney can stand up and say, “I’ll tell you why it happened. I’ll tell you why the judge did such-and-such,” and can really give a practical viewpoint to the record and explain why things happened the way that they did.
Related to that, what are some common mistakes that appellate attorneys make?
Approaching an appellate argument like you would a jury trial or like you would arguing in the first instance with a trial judge. This is especially true with issues like expert witness testimony or other evidentiary decisions. So many evidentiary issues at trial are discretionary calls for the trial court. Our lens, when the Supreme Court looks at the issue, is very focused. We are not going to jump in and change an evidentiary ruling very often. If you are going to argue that a trial ruling is an abuse of discretion, you really need to ask yourself, “Under the Lunneborg[i] factors, where did the trial court go wrong?” If it was the legal analysis prong, you need to start there. That is where most successful abuse of discretion arguments are going to rest. That is where you should spend your time.
Sometimes tone is an issue, too. At times, great trial attorneys will come in and approach our bench like a trial. It’s not the same thing at all in terms of substance or even style.
What about advice for trial judges?
I would pass along a piece of advice that Justice Stegner gave me at one point. You can’t worry about being wrong. Sometimes it is easy as a trial judge to think of an appeal as a scorecard or report card on your work, and it really isn’t. There are a lot of really sticky legal issues that quite frankly could reasonably be decided either way – or in any number of ways. At the end of the day, the judge has to make the call.
The beauty of the appellate system is there are five of us. I think the constitution envisions that five heads are going to do a better job parsing a decision for a system, rather than just one. But those appellate decisions aren’t report cards.
What is your view of the importance of unanimity in appellate decisions, as well as the role of concurring and dissenting opinions?
I think the most powerful tool that any appellate jurist has is the unpublished dissent. What I am talking about are those cases where someone will pen a dissent and will actually flip the entire decision. The public never sees it. Often with these decisions, the justice can explain in a few paragraphs what is wrong with the majority opinion and why it is that it shouldn’t stand. There is enormous value in that tool.
As far as the value of unanimity, it brings a level of certainty for the bench and the bar. It hopefully settles an issue for the cases to come. Most of our decisions are unanimous. Well over 90% of our decisions. We are not the Supreme Court of the United States; we take up a lot of different issues than the Supreme Court of the United States and I think our function is much different. We have an error-correcting component to our work that the Supreme Court of the United States really doesn’t have. Outside of the federal statutory realm, they don’t fix errors. They pronounce constitutional judgments. You can’t bounce around from a legal perspective – you need steady, even-handed decisions.
There is also value to concurring opinions. They can clarify points of law, add nuance, or give another perspective that can be valuable. Dissenting opinions and partial concurrences can sometimes lay the groundwork for future opinions or additional arguments – especially where the arguments didn’t get made within the present case. Because we have kept pretty tightly to the party-presentation principle, these opinions may keep the door open to another path.
On the issue of stare decisis, how important is consistency to Idaho appellate decisions?
When it comes to state law, especially as we are the keepers of the common law, it is important to keep the law predictable, steady, and knowable. At the same time, there is a tension in making sure that you decide the issues correctly. This tension also presents itself in decisions such as whether to overturn precedent. Keeping the law predictable can sometimes be at odds with our party-presentation principle. Our court, particularly in the last six years, has sounded a drum beat that we will not take up new issues or arguments that were not presented to the trial court. At the same time, sometimes that doctrine gets to be challenging. We want to get the law right.
Is it a frustrating experience as an appellate jurist to see what you think is the best or a better argument and no one seems to be making it?
It can be, although I don’t know that “frustrating” is the right word. We walk a delicate line between staying true to the issues that the parties have brought to us but at the same time making sure that we are deciding the law in the best way possible. As a practitioner, I can think of a footnote that appeared in a case and feeling that it wasn’t right. I thought the Court took up an issue and decided it wrong when nobody invited them to weigh in on it. As a Justice, that footnote weighs on me. That experience factors into my decision making and is one of the reasons why you won’t find footnotes in my opinions.
There seems to be a trend with the current composition of the Idaho Supreme Court to provide more of an explanation of the principles behind its decisions. Is that a deliberate plan or focus of this Supreme Court?
Speaking for myself, it is important for any legal decision to walk through all of the steps that any lawyer would need to walk through when analyzing a legal issue. We have used this phrase in a recent opinion: “You have to show your work.” Just like a math problem. Contrary to what some might think, there really is a methodology and logic behind the rule of law.
Dean Don Burnett from the University of Idaho College of Law teaches courses to journalists and teachers about how to read legal opinions, as well as how to understand what’s going on in a courtroom. He tells people to pretend they have a rule-of-law magnet in their hand that attracts statements of the rule of law – if you put that magnet down on the article or writing, what would be attracted to it and what do those statements show about the legal issues? Is there any rule of law that is being explained or is it just someone expressing outrage at the result without any discussion of what the issue was, what the rule of law was, and how the judge analyzed the facts as they relate to that rule of law?
What Dean Burnett is telling those teachers and journalists is that there is a process. I agree with Dean Burnett that there is a process; that’s what we went to law school to learn. Our opinions should reflect that process. That being said, sometimes an opinion can go too far and show too much work to reach the result. It’s all about balance. It’s important to explain to people why.
My freshman sociology professor in college gave us a bumper sticker that said, “Why is that?” I know that, for myself, I try to answer that question in every opinion that I write. I am quite sure that the opinion is going to be unpalatable for at least half of the parties, and maybe all of the parties. Knowing that at least one side of the legal dispute will likely be disappointed in the outcome, these opinions need to answer the question of why we reached a particular decision for both that case and for future cases.
What would you hope to be the legacy that you leave behind as an Idaho Supreme Court Justice and the qualities that you would hope to be known for?
I hope I am a Justice who follows the law, wherever that takes us. I hope I am a Justice that people recognize as being willing to set aside personal views or preferences, and who makes a decision that is in accord with the law. When I say, “the law,” I mean statutes and the constitution. I have a very definite viewpoint about the role of the courts, and I believe strongly in the separation of powers. Our system works best when every branch of government stays in its lane of travel.
That requires respecting legislative prerogatives to legislate and make policy decisions. For me, it means to read a statute plainly, with its ordinary meaning, as an average person would. It’s not about what I think. It’s about what the law says and what the law is. I hope that people recognize, over time and through my work, my writing, and my decision making, that this is my philosophy.
Note: Ms. Tompkins wishes to give her sincere thanks to Tresha Griffiths, Judicial Assistant to Justice Brody, for her patience and invaluable assistance in making this article possible.
Sarah E. Tompkins has specialized for most of her career in Idaho in appellate work and legal research. She is the third generation of her family to graduate from the University of Idaho. Ms. Tompkins was a public defender with the Idaho State Appellate Public Defender’s Office for nearly 10 years. Following her time as an appellate defender, she served over six years with the Ada County Public Defender’s Office, initially as a misdemeanor trial attorney and subsequently as a legal research specialist. Ms. Tompkins has recently transitioned into private practice.
[i] Lunneborg v. My Fun Life, 163 Idaho 856 (2018).
Maximizing Your Client’s Chance of Success in Federal Habeas
Jonah J. Horwitz
Most of the time, the lawyers who specialize in representing habeas petitioners in federal court are treated as curiosities by the rest of the criminal defense bar. That is for good reason, as habeas law is complex, convoluted, and usually irrelevant to the day-to-day practice of anyone outside the tribe. Sometimes, however, developments in federal habeas law significantly impact the long-term consequences of decisions made by defense attorneys years earlier. Such a development took place in 2022, when the United States Supreme Court handed down its decision in Shinn v. Ramirez.
My goal here is to outline the major implications of Ramirez for Idaho defense lawyers who handle cases in state court, either at the trial, appellate, or post-conviction levels. In particular, I will focus on the broad lessons of Ramirez in terms of what they suggest about how a state court lawyer can best situate her client for prevailing in federal habeas, should the case get that far.[i] By way of caveat, the article will not speak to the separate question of what strategies lead to the best outcomes in state court proceedings themselves. That is something for a skilled and experienced state court practitioner to comment on – not federal habeas lawyers, whose focus is always on the remedy of last resort.
The Pre-Ramirez Safety Net
First, some background is necessary, though I will try to avoid driving away the reader with too much habeas[ii] arcana. In 1991, the Supreme Court decided Coleman v. Thompson. Coleman addressed the question of whether ineffective assistance of counsel at the state post-conviction stage could serve as an excuse for a federal habeas court to reach the merits of a constitutional claim. That is, when a state post-conviction lawyer should have asserted a particular issue and failed to do so without any good reason, is her mistake a basis for the inmate to have the claim heard in federal court? Coleman’s answer was no.[iii]
The Supreme Court radically altered course in 2012, when it changed the answer to yes. In Martinez v. Ryan, the Court held that ineffective assistance of post-conviction counsel provided cause for federal courts to reach one important set of claims. Those claims were limited to ineffective assistance of trial counsel.[iv] The rule from Martinez applied to most state systems in which trial-ineffectiveness is typically asserted in post-conviction proceedings, rather than on direct appeal.[v] That made it the rule in Idaho.[vi]
After Martinez, in states like Idaho, a safety net existed for federal constitutional claims that had been wrongly left out of state court litigation. For the many claims that could be framed in terms of ineffective assistance of trial counsel, the doors to the federal courthouse were now open. It became a significant exception for a couple of reasons. One is that, for any claim that has been assessed on the merits in state court, federal habeas review is hamstrung by an extremely demanding standard.[vii] But Martinez claims were by definition not considered on the merits in state courts, as they were missed by initial post-conviction counsel, so they received de novo review in federal habeas.[viii] The second key aspect of Martinez for present purposes was that it allowed, at least in the Ninth Circuit, substantial expansion of the record in federal court beyond what was presented in state proceedings.[ix]
The Net Removed
That brings us to Ramirez, which appears to have closed much of the window opened by Martinez. The upshot of Ramirez is that, with limited exceptions most likely applicable in few cases, petitioners whose post-conviction attorneys overlooked claims are now prevented from expanding the record in federal court.[x] That is a serious problem for the average ineffectiveness claim. If the claim was missed by post-conviction counsel, the facts supporting the claim were probably left out of the state court record as well. And if habeas counsel cannot bring the facts out in federal court, they will be off the table altogether.
It is a particularly concerning predicament when it comes to establishing prejudice. When a trial attorney is faulted for an omission, precedent requires a showing of a reasonable probability of a different result had the action been taken.[xi] Evidence of how things would have turned out differently is almost invariably outside of the trial record. And if it is outside the initial post-conviction record as well, it is likely barred from federal review, and the claim will meet a swift death in habeas.[xii]
Prepping for Habeas Post-Ramirez
It is time, then, to turn to how state counsel should react to Ramirez. The upshot is that no one is entitled to assume federal court will continue to serve as a reliable backstop. If counsel fail to spot an issue while the case is progressing through the state court system, it might never see the light of day. That reality gives rise to a number of imperatives for state counsel.
First, preserve any potentially meritorious constitutional claim at every phase of the state court proceedings. What is more, keep in mind that to preserve these issues for habeas, they must not only be raised as constitutional arguments but as federal constitutional arguments. Imagine, for example, that you are a trial attorney and you are alleging a violation of Idaho’s rule against hearsay. Give serious thought to whether it might make sense to assert that your client’s rights under the Sixth Amendment’s Confrontation Clause were violated along with his rights under the hearsay rule. There is, after all, obvious overlap between hearsay principles and Confrontation Clause law.[xiii]
Or take a situation in which the judge is refusing to allow you to put in evidence you feel is pivotal to your case. You will almost certainly have points to make with reference to state evidentiary rules. How about simultaneously invoking your client’s due process right to present a defense?[xiv] The same right is a candidate for other situations as well. Even as routine a matter as the denial of a continuance could, under the right circumstances, violate the right to present a defense.
Similar approaches are called for at the appellate level. If you are, say, an appellate attorney who is arguing to the Idaho Supreme Court that the evidence was insufficient to convict your client, the claim can easily be framed so that it encompasses, in addition to state law, the related federal due process right against conviction based on inadequate evidence. It is presumably an identical argument, as the tests are the same.[xv]
Just remember that best practice is to cite both the constitutional provision and a case on point from the federal courts, to ensure you are adequately exhausting the issue.[xvi] In an ideal world, you would delve into the federal constitutional claim in some detail. Assuming you don’t have the time for that degree of thoroughness, at least include the federal citations. Don’t forget that complete exhaustion means presentation to the Idaho Supreme Court in a petition for review, even if the Court of Appeals has taken up the claim.[xvii]
State Court Claims Are Essential
Ramirez has notable ramifications for attorneys who handle post-conviction matters in state court, as well. To begin with, it is more essential than ever to diligently pursue any colorable claim of ineffective assistance of counsel. In the Martinez era, there was considerable leeway for such claims in a federal court in the Ninth Circuit. No more. If your client has a potential ineffectiveness claim, it must be raised in state court. In searching for ineffectiveness claims, keep in mind that post-conviction attorneys are in many ways in the same position as trial counsel: they have an obligation to investigate matters beyond the record to see if their predecessors should have done anything differently.[xviii]
There is a tendency among some post-conviction practitioners to view their work through appellate lenses because a record already exists when they enter the stage. The tendency is perhaps more prevalent in places, like Idaho, where many attorneys do the occasional post-conviction case without specializing in the area. But the tendency is mistaken. A post-conviction attorney has an opportunity to find evidence that escaped the original lawyer’s attention. Now that traction in federal court will be more difficult to get, a robust post-conviction investigation is key.
Drafting Ineffectiveness Claims
A special word on drafting ineffectiveness claims is in order, too. Some scenarios obviously present ineffectiveness concerns. An objectionable statement on the record at trial that draws no objection is an easy call. But one of the upshots of Ramirez is a renewed need to think imaginatively and expansively about what exactly qualifies as ineffectiveness. The Fourth Amendment is a good example. Substantive Fourth Amendment issues are almost always beyond the reach of federal habeas proceedings because the exclusionary rule generally does not apply there.[xix] Nevertheless, an inmate may still get habeas relief in federal court on a Sixth Amendment claim that trial counsel was ineffective for failing to bring a suppression motion.[xx] This is yet another reason to cast a wide net in framing issues with reference to trial-counsel ineffectiveness.
Post-conviction attorneys ought not to forget another category of ineffectiveness claims: those pertaining to direct-appeal-counsel’s performance. Appellate ineffectiveness remains a legitimate basis for a federal habeas court to reach a claim that would otherwise be procedurally barred. For the avenue to work, the appellate-ineffectiveness claim itself has to be exhausted in state court.[xxi] As the road to federal habeas review becomes even more challenging, the paths still standing are especially deserving of attention, and appellate-ineffectiveness is one of them. The mindset for crafting such claims, unlike when they are directed at trial counsel, is that of an appellate attorney. That is to say, when you are pursuing an appellate-ineffectiveness claim, you are almost always limited to issues presented by the existing trial record.[xxii]
Your task is to review the trial record and determine what challenges could have been articulated on appeal that were not, much as a direct-appeal attorney herself would do. Thus, taking into account your responsibility of formulating ineffectiveness claims geared toward both trial and appellate counsel, the best way of conceiving your role is that you yourself are wearing both a trial and appellate hat. You are searching for fruitful facts to investigate, as a trial lawyer would, but also scouring the established record for issues it supports, as an appellate lawyer would.
Challenge Restrictions on Post-conviction Review
Finally, post-conviction counsel have renewed reason to zealously litigate unreasonable procedural limitations being placed on them by the state courts. Is your post-conviction judge refusing you resources you need to litigate the case, by preventing you from hiring experts or taking other essential steps? Is she rejecting well-founded motions for continuances? Is she imposing unfair page limitations? Is she denying an evidentiary hearing even though one is called for by state law? Is she imposing unwarranted limitations on the scope of an evidentiary hearing? Is she declining to order the State to provide you documentary discovery or authorize depositions despite your entitlement to these fact-finding tools?
Your client will be well-served by you making a clear record of any such restraints and your opposition to them. In federal court, even after Ramirez, there is still good law that unjustified procedural constraints in state post-conviction open the way to more meaningful federal habeas review.[xxiii]
The bottom line is that Ramirez calls upon state-court practitioners to be careful, comprehensive, and creative in litigating claims with an eye to preserving them for potential federal habeas review. Although it has gotten more difficult to prevail in federal habeas, you owe it to your clients to give them as much of a chance as you can.
Jonah J. Horwitz is an attorney in the Capital Habeas Unit for the Federal Defender Services of Idaho and the Chair of the Amicus Committee for the Idaho Association of Criminal Defense Lawyers. After graduating from law school at Northwestern, Jonah clerked for three judges over four years in various state and federal courts.
[i] The suggestions made here are designed for non-capital cases. Death-penalty matters are unique in many respects and fall outside the scope of the article. The views expressed here are solely the author’s.
[ii] For convenience, I will use the term “habeas” as shorthand to refer to federal judicial review of state-court judgments.
[iii] 501 U.S. 722, 753 (1991).
[iv] Martinez v. Ryan, 566 U.S. 1, 9 (2012).
[v] Id. at 11.
[vi] See, e.g., Johnson v. State, 162 Idaho 213, 228, 395 P.3d 1246, 1261 (2017) (recognizing that “Martinez applies in Idaho”).
[vii] See, e.g., Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” (internal quotation marks omitted)).
[viii] See, e.g., Rodney v. Filson, 916 F.3d 1254, 1262 (9th Cir. 2019).
[ix] See Dickens v. Ryan, 740 F.3d 1302, 1319–21 (2014).
[x] See 142 S. Ct. 1718, 1735 (2022).
[xi] Strickland v. Washington, 466 U.S. 668, 695 (1984).
[xii] There are exceptions to all of the general habeas rules mentioned here, which are too involved to get into in such a short space. The article s instead written to capture with a broad brush the general principles at play in habeas practice that apply to the lion’s share of cases.
[xiii] See, e.g., Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”).
[xiv] See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”).
[xv] Compare Jackson v. Virginia, 443 U.S. 307, 318 (1979) (articulating the federal constitutional test as “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”), with State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (reiterating the same standard for state-law challenges to the sufficiency of the evidence on appeal).
[xvi] See, e.g., Galvan v. Alaska Dep’t of Corrs., 397 F.3d 1198, 1202–03 (9th Cir. 2005) (finding a claim unexhausted where the petitioner cited only state authorities on appeal).
[xvii] See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
[xviii] See, e.g., Trevino v. Davis, 829 F.3d 328, 347 (5th Cir. 2016) (holding post-conviction counsel to the same standards applicable to trial attorneys).
[xix] Stone v. Powell, 428 U.S. 465, 494 (1976).
[xx] See, e.g., Grumbley v. Burt, 591 F. App’x 488, 499–501 (6th Cir. 2015).
[xxi] See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
[xxii] See, e.g., Dumas v. Long, No. 5:14-cv-328, 2015 WL 4720583, at *7 n.12 (C.D. Cal. June 5, 2015) (“[T]o the extent petitioner’s ineffective assistance of trial counsel claims rely on evidence not in the trial record . . . , his appellate counsel cannot be faulted for failing to raise the claims as appellate counsel was limited to what was in the trial record.”), adopted by, 2015 WL 4722216 (C.D. Cal. Aug. 6, 2015).
[xxiii] See, e.g., Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (reiterating that federal merits review of a habeas claim is conducted de novo when “the factfinding procedures upon which the [state] court relied were not adequate for reaching reasonably correct results or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth” (internal quotation marks omitted)).
The Return of the General Warrant
Benjamin M. Onosko
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.”
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 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]
Benjamin M. Onosko obtained his J.D. at the University of Idaho College of Law in 2010. After graduating, he clerked for the Honorable Darla Williamson for a year before going into private practice. During his time in private practice Ben developed a love for criminal defense and had the opportunity to mentor under Charles Kovis. Since 2016, he has worked for the Kootenai County Public Defender’s office. Ben is the father of two wonderful children and married to his loving wife, Sarah. In his spare time, he enjoys camping and taking trips to the woods with his family.
 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.
[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.
[xii] Otis, James. Collected Political Writings of James Otis. Liberty Fund, 2015. https://oll.libertyfund.org/title/collected-political-writings.
[xix] Michael, supra note 5, at 907-908.
[xx] Otis, supra note 12.
[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.
[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.
Pleading the Fifth and the Erosion of Due Process
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 17th 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 19th 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.
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.
K. Jill Bolton is the managing owner of Bolton Law, PLLC in Coeur d’Alene where she focuses on state and federal criminal defense, family law, and civil rights/employment litigation. She serves on the Board of Directors for the Federal Defender Services of Idaho, as Chair of the Idaho State Bar Employment & Labor Law Section, and as faculty of the National Association for Public Defense. In her free time Jill enjoys skiing and hiking the great mountains of North Idaho and long-distance road biking.
[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.
[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).
[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)).
What Your Kids Need to Know About Search and Seizure
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 20th 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.
Johnathan R. Baldauf is the owner of Baldauf Law, PLLC. He has been practicing in Idaho since 2017 and handles criminal defense as well as family law cases throughout the state. When not handling those issues, he enjoys spending time with his fiancé, Shannon, trivia, and going to the gym.
[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.
[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.
How the Pandemic Altered the Criminal Defense Landscape
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.
Jessica A. Harrison has been a public defender with Ada County since 2018. The ideas reflected in the article are hers alone and are not attributable to the Ada County Public Defender’s Office.
[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/.
[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.
Discovery Delayed is Justice Denied: Discovery Delays in Misdemeanor Cases
Justin A. Bowles
“Justice delayed too long is justice denied.” – Dr. Martin Luther King, Jr., Letters from Birmingham Jail
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:
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.
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.
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.
[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)).
Bar Counsel’s Office Department Report
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.
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.
Joseph N. Pirtle joined Bar Counsel’s office in April 2022. Prior to that, Joe was a shareholder and civil litigation attorney with Elam & Burke in Boise. Joe received his B.S. in business finance from the University of Idaho in 2001 and his J.D. from the University of Idaho College of Law in 2004.