CrimLaw

Federal Supreme Court:

(1) Iowa v. Tovar: When you waive your right to counsel you cannot try to void the conviction years later because you waived your right to counsel. Seems a little silly that this got as far as it did (must have been good advocacy that carried it).

(2) Crawford v. Washington: Prosecutors cannot get around privilege by using a statement made to police by a person who cannot be made to testify. This ruling has given rise to comments over at I respectfully dissent and The Volokh Conspiracy.

As to the comments in both above cites about Justice Scalia, I actually prefer his interpretations of criminal law because they are straight forward. He appears to disfavor balancing tests which always seem to come out in the favor of law enforcement (almost seems as though there's a thumb on that scale) and favor in their stead bright line tests. At least that's the impression I get when I read cases like Kyllo where he starts out by pointing out how Katz uses circular reasoning (reasonable expectation of privacy standard - talk about a moving target) and then draws a line at the house as a place of penultimate protection (ed comment: IMHO the person being the ultimate). I also think he favors a straight reading of text (i.e. see his comments on Smith in A Matter of Interpretation on pages 23-24) which I find refreshing after reading some of the amazingly contorted interpretations courts put on statutes in order to uphold convictions. And I don't think he discriminates; if you are wrong, you are wrong - whether you are a Defense attorney or the government.

Will Baude (Crescat Sententia) quotes a part of the decision wherein the Justice points out that the founding fathers didn't trust judges any more than they did other government actors. The best part? "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design."

Meanwhile, over at I respectfully dissent, Bryan Gates is getting e-mail from judges and other lawyers discussing the decision. The judge's comment is especially interesting.