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Criminal Law and Procedure Decisions of the
October 1999-2000 Supreme Court Term

by Solomon L. Wisenberg of Ross, Dixon & Bell, L.L.P.

Introduction

The 1999-2000 Supreme Court Term produced two potentially breathtaking decisions in the area of criminal law and procedure. In Apprendi v. New Jersey, the Court held that any fact, other than the fact of a prior conviction, "that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." This opinion has already spawned hundreds of United States Circuit Court decisions, will possibly result in the re-sentencing of thousands of criminal defendants, and places many criminal statutes in doubt. In United States v. Hubbell, the Court severely scaled back its opinion in Fisher v. United States and gave a radically expansive view of "act of production" immunity. Otherwise, the term featured the usual battles among the various wings of the Court.

Search and Seizure

The Court’s Fourth Amendment opinions produced some new bright-line rules. A federal agent’s squeezing of a bus passenger’s bag now constitutes a Fourth Amendment search. (Thus, under current Fourth Amendment case law, a bus passenger gets more protection for his publicly stowed luggage than a property owner does who seeks to shield his land from public view.) The Court finally found an anonymous tip that was insufficient for probable cause purposes, holding that "an anonymous tip that a person is carrying a gun is, without more, [insufficient] to justify a police officer’s stop and frisk of that person." Looking guilty can cause you trouble, however, because the Court held that unprovoked flight from uniformed officers in a high crime area justifies a Terry stop.

Confessions

The Court upheld the rule in Miranda against a federal statute that tried to overrule it. Justice Rehnquist was particularly moved by Miranda’s acceptance within popular culture. Presumably this is a reference to television crime shows. This may open up an interesting line of jurisprudence. Just think of it, if Police Woman had spent more time discussing Roe v. Wade’s trimester system, the right to life movement would probably be dormant by now.

Trial Rights

The Court applied the Ex Post Facto Clause to evidentiary changes that lessen the state’s burden at trial, but declined to extend Griffin v. California to comments upon a defendant’s presence in the courtroom and the resulting opportunity it provides him to tailor his testimony. A defendant who tries to "take the sting out of the bite" by introducing evidence of his prior bad acts, before the prosecutor gets a chance to do the same, waives any appellate objection to the state’s introduction of that evidence. If a defendant uses a peremptory challenge to excuse a venireman who the judge erroneously refused to strike for cause, that defendant is likewise out of luck. Far from having his rights abridged, the defendant in this situation has used his peremptory "to help secure the constitutional guarantee of trial by an impartial jury." Death penalty verdicts will not be reversed "when a trial judge directs a Jury’s attention to a specific paragraph of a constitutionally sufficient instruction in response to a question regarding . . . mitigating circumstances." This is true, even if the narrow focus of the specific paragraph in question may have the effect of confusing the jury.

Appeal Rights

The Court declined to extend a defendant’s constitutional right to represent himself, established in Faretta v. California, to the appellate process. The Court also developed a convoluted test for determining whether counsel is ineffective for failing to file a notice of appeal when the defendant has not clearly conveyed his wishes. The Court allowed the states to develop standards for dismissing frivolous appeals that are not precisely identical to those outlined in Anders v. California, and held that retroactive application of state parole board rules, permitting an increase in intervals between parole considerations, does not violate the Ex Post Facto Clause.

Conclusion

No clear themes emerged from the 1999 term. Justices Thomas and Scalia, however, continue to take their textual originalism into interesting areas. Though Scalia and Thomas are often criticized as knee-jerk conservatives, their approach in some instances could have significant beneficial effects for criminal defendants. For example, Justice Thomas’ suggestion (joined in by Justice Scalia) that the Court should return to the days of Boyd v. United States and apply the Fifth Amendment’s self-incrimination clause to anyone who "gives evidence" would, if implemented, revolutionize Fifth Amendment jurisprudence.

Herewith are summaries of the Court’s criminal law and procedure holdings from the October 1999 Term. The author wishes to acknowledge the assistance of Richard Barrett and Elizabeth Veneris in preparing these summaries. The opinions expressed in the various "Comments" sections are entirely my own.

Summaries

    Anti-Terrorism and Effective Death Penalty Act of 1996
  • Slack v. McDaniel
    Rules Governing Appeals
    Defendant’s Presence at Trial
  • Portuondo v. Agard
    Commenting on Defendant’s Ability to Shape Testimony
    Habeas Corpus
  • Edwards v. Carpenter
    Ineffective Assistance of Counsel as “Cause” of Procedure Default
  • Williams v. Taylor
    28 U.S.C. §  2254(e)(2): Failure to Develop the Factual Basis of Claims During State Court Proceedings
    Interstate Agreement on Detainers
  • New York v. Hill
    Waiver of Right to Timely Trial
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