Katz Has Only One Step: The Irrelevance of Subjective Expectations

Orin S. Kerr

George Washington University – Law School

June 11, 2014

University of Chicago Law Review, Forthcoming

Abstract:

This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.

The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.

Each state has its own developed spousal privilege doctrine, but the common theme is most of that doctrine was developed when people actually got married. Our society is different now. People quite regularly have children and live in a relationship which is every bit as committed as one where there is a marriage license. Thanks to Judge Wayne Gorman, we can share a Canadian perspective on the issue:

In R. v. Legge, 2014 ABCA 213, June 23, 2014, the accused was acquitted of a number of offences.  At his trial, the main Crown witness was to be the accused’s common law spouse, but she did not wish to testify. The trial judge held that the doctrine of spousal immunity applied and thus the witness could not be compelled to testify against the accused. The Crown appealed, requesting the ordering of a new trial.   The appeal was dismissed.

 

 THE APPEAL

The Court of Appeal described the issue raised by the appeal as follows:

The primary issue raised by this appeal is whether common law spousal immunity, which protects legally married spouses from being compelled to testify against one another, should be extended to common law, or non-married, partners.

 THE COURT OF APPEAL’S DECISION

The Court of Appeal, at paragraph 10, indicated that “the law demands an extension of spousal immunity privilege to genuine common law spouses – those in committed, long-term relationships who have agreed to be socially and economically interdependent, to the exclusion of others.”   However, the Court of Appeal also sought to limit the scope of its decision (at paragraph 11):

Accordingly, and for the reasons set out below, I conclude that it is just and appropriate, and in keeping with the values set out in the Canadian Charter of Rights and Freedoms, to extend the immunity rule to make common law spouses in committed relationships, akin to marriage, non-compellable witnesses for the Crown. I would, however, place clear limits on that extension. This decision deals only with the ability of the Crown to compel a spouse to testify in these circumstances; it makes no comment as to the spouse’s competence to testify. Further, this extension of the common law rule will only apply where, as here, the various modifications and exceptions to the immunity rule contained in s 4 of the CEA have no application. The extension of the common law rule is based on principles of equality; the common law spouse can have no greater immunity from testifying than the legally married spouse.

The Court of Appeal noted, at paragraph 15, that it was “dealing in this case with common-law rules dating back to at least the 1630s, which render a married person both an incompetent and non-compellable witness against his or her husband or wife. Competence and compellability are separate, though related, concepts. Competency means a person may lawfully be called to give evidence; an incompetent witness cannot testify even if he or she wishes to do so. A compellable witness is one who may lawfully be forced to attend and testify, generally by subpoena, against his or her wishes. Subject to certain exceptions, at common law neither the Crown nor the accused can compel a husband or wife to testify for or against his or her spouse, nor is a spouse competent to testify for or against his or her husband or wife, even if he or she would like to do so. See generally R v Salituro, [1991] 3 SCR 654, 68 CCC (3d) 289; R v Hawkins, [1996] 3 SCR 1043 at paras 36-38, 111 CCC (3d) 129 (per Lamer CJC and Iacobucci J); R v Couture, 2007 SCC 28, [2007] 2 SCR 517, and related case comment, Stuesser, Abolish Spousal Incompetency (2007), 47 CR (6th) 49.”

The Court of Appeal indicated, at paragraph 45, that the “guiding principles would be those set out by L’Heureux-Dubé J in Miron: a relationship analogous to marriage, with some degree of publicly acknowledged permanence and interdependence.  The list of factors set out in ss 1(2) of the AIRA [the Adult Interdependent Relationship Act, SA 2002, c A-4.5] can provide a useful, although non-exhaustive, guide. They are”:

i) Whether or not the persons have a conjugal relationship;

ii) The degree of exclusivity of the relationship;

iii) The conduct and habits of the persons in respect of household activities and living arrangements;

iv) The degree to which the persons hold themselves out to others as an economic and domestic unity;

v) The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;

vi) The extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;

vii) The degree of financial dependence or interdependence and any arrangements for financial support between the persons;

viii) The care and support of children; 

ix) The ownership, use and acquisition of property.

The Court of Appeal acknowledged that in “pointing to the AIRA” it was “suggesting reference to provincial legislation in a criminal context…however, those factors appropriately reflect the required inquiry: whether the couple is in the kind of committed relationship that the state seeks to support by protecting one spouse from having to give compelled evidence against the other.”

Polls can be inaccurate.  But, simply being totally dismissive of polls is not particularly responsible. Public trust in government is important for the judiciary – particularly when it comes to an essential element of what courts do:  protect individual liberty.

A new Gallup poll shows a record drop in the satisfaction of Americans over their freedoms. The massive drop is matched in such countries as Egypt, Pakistan, and Venezuela.

Seventy-nine percent of US residents are satisfied with their level of freedom. That is down from 91 percent in 2006 — a 12 point drop.  That 12-point drop pushes the United States from among the highest in the world in terms of perceived freedom to 36th place, outside the top quartile of the 120 countries sampled, trailing Paraguay, Rwanda, and the autonomous region of Nagorno-Karabakh.

The poll, which also found that there is an increased perception of corruption in the country, can be found here.

Michigan juveniles sentenced to mandatory life without parole prior to the 2012 U.S. Supreme Court ruling in Miller v. Alabama do not have to get new sentencing hearings, the court said in a 4-3 opinion. Michigan joins other states which have similar holdings but differs from other states which have held the decision is retroactive.

In partnership with the U.S. Department of Justice’s Bureau of Justice Assistance (BJA), the CSG Justice Center is seeking applicants for the Criminal Justice/Mental Health Collaboration Learning Sites Program. This program is designed to identify and highlight agencies from across the country with successful collaborations between the criminal justice and mental health systems in the areas of pretrial, community corrections, and court-based programs (e.g., mental health court) that are willing to share their expertise with the field.

Interested jurisdictions must submit a letter of interest and application by July 11, 2014, 11:59 p.m. EST.

For more information, go to the Justice Center’s website.

The Iowa Supreme Court recently announced it has amended a decision it filed a few weeks ago. Trial court orders are amended every day.  So, too, are appellate court decisions, so there is nothing particularly notable about an amended order.  But, attention on the United States Supreme Court’s practice of amending its orders was focused upon by New York Times reporter Adam Liptak who wrote about the U.S. Supreme Court’s practice of quietly editing its opinions after they’ve been released.

That the United States Supreme Court makes minor corrections – typos and such – is no secret.  But, as Liptak noted, the justices make substantive changes as well. And they don’t tell us.

An excerpt from Liptak’s article:

The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.

But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.

The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

Read the full article here.

The title of this post comes from this recent paper by Professor Lois Shepherd, the abstract of which states:

“End-of-life decision-making” in the health care arena is increasingly governed by special rules that insist on legally exact, complex documentation, depend on idealized notions of patient autonomy, and may be driven by political ideology rather than concern for patients. These rules — though often well-intended — can impede rather than honor patients’ wishes, values, interests, and relationships. This article analyzes the effects of these special rules through discussion of patient stories, the empirical literature on advance care planning and patient preferences, and state surrogate decision-making statutes and living will forms. It argues that questions about medical care at the end of life should be approached like other important questions about medical care. Reducing the legal distinctions between these types of decisions can bring good legal/ethical practices in caring for patients generally to caring for them when they are dying and also bring important lessons learned from decades of end-of-life law and ethics to the care of patients at any stage of life and health. The article provides a blueprint for reform through eight general principles that should guide the law relating to all health care decisions, including those we now think of as end-of-life decisions.

Thanks to The Sentencing Law & Policy Blog:

The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:

You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.

The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?

In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: “Only an idiot would drive on the sidewalk to avoid a school bus.” The woman chose to hold the sign.

Puritan punishments like locking someone’s head and hands in the stocks seem like retribution, not justice. In “The Scarlet Letter,” Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the “A” she was condemned to wear.

Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge’s discretion?…

Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: “I stole mail and this is my punishment.”

It’s hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.

Daniel Markel, the D’Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn’t have some efficacy, “there probably wouldn’t be much resistance” from miscreants, but “in fact defendants typically don’t want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets.”…

The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on “cruel and unusual” constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief’s hands. Markel adds another objection to asking the guilty to pick their poison: “We punish to communicate censure and condemnation. It’s for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments.”

Edmond Aviv apparently wasn’t given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it’s hard to fault the judge for trying something different. And even though we don’t live in Hester Prynne’s world anymore, I’ll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it “communicated censure and condemnation.” In this case, it seems, a bad guy got his just deserts.

A few recent and lots of older posts on shaming sentences:

• Another notable (and astute?) local shaming sentence for elderly bully
• A shameful suggestion for how to make NYC roads and walkways safer
• New commentary calls “creative” shaming punishments “terrible” (on curious grounds)
• Public shaming instead of incarceration in Pennsylvania theft case
• Shaming t-shirts ordered as part of community service sentence
• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• A proper case for shaming?
• New article on shaming sanctions
• More shame, shame on you
• The state of shaming punishments (with lots of links)

Expert Testimony on Interrogation and False Confession

Brian L. Cutler

University of Ontario Institute of Technology (UOIT)

Keith A. Findley

University of Wisconsin Law School

Danielle Loney

University of Ontario Institute of Technology (UOIT)

May 13, 2014

UMKC Law Review, Vol. 82, No. 3, 2014
Univ. of Wisconsin Legal Studies Research Paper No. 1256

Abstract:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions “the Miranda warnings.” The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

Marie-Eve Sylvestre (University of Ottawa – Civil Law Section) has posted The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility (SUPREME COURT LAW REVIEW (2013), 63 S.C.L.R. (2d)) on SSRN.

Here is the abstract:

This paper discusses two important developments following the Supreme Court’s decisions in Ipeelee/Ladue. First, it suggests that the Court’s first-time recognition of the proportionality principle in sentencing as a principle of fundamental justice under section 7 of the Charter is likely to have tremendous impact on sentencing theory and practice by offering new constitutional grounds to challenge mandatory minimal sentences and arbitrarily disproportionate sentences. Second, this paper builds on the Court’s development around the notion of degree of responsibility to propose a new conception of shared and collective responsibility that include the responsibility of state agents and of the state in the perpetration of the crime and allows sentencing judges to reduce or nullify offender’s sentences accordingly.