Reconfiguring terms
It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.
So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.
A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.
A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.
“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.
Any more ideas?
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about 7 months ago
Yeah, I have some ideas:
When the defendant gets busted for driving on an otherwise-valid license that has expired…
When the defendant gets busted for purchasing a little too much pseudoephedrine…
When the defendant gets busted for possessing any prohibited object or substance which would be legal to possess on the other side of a political boundary that is within a brisk 10-minute walk…
When the defense gets busted for possesion of an illegal substance in quantities that can be described as “residue” or “traces”…
When the defendant gets busted for violating a restraining order after his wife/girlfriend invites him back home…
When the defendant gets busted for having an open container in his car despite blowing a legal BAC…
When the defendant gets busted for doing anything which would would have been legal if only he had done the paperwork (permits, licenses) and paid the fees to make it legal…
…that should be called “getting arrested on a technicality.”
The Constitution, on the other hand, is not a technicality.
about 7 months ago
I said the guts of that last line (“The Constitution is not a technicality”) some years ago in oral argument in an Ohio intermediate appellate court.
One of the judges on the panel, a generally pretty good judge, said of the fact that the grand jury (constitutionally mandated in Ohio) didn’t actually charge my client with a capital offense despite the state’s desire to execute him, “isn’t that just a technicality?”
The guy is, I’m happy to say, off death row now, though not thanks to that judge.
about 7 months ago
What was your response?
about 7 months ago
Roughly, “The Constitution is not a technicality. And since he was never charged with a capital offense, that should be the end of it.”
I was actually appellee. He’d been found guilty, but the trial court agreed that there was no proper death specification from the grand jury, so sentenced him to life without a penalty phase. A week or so later, the Ohio Supreme Court said, in a similar though distinguishable case “Close enough for government work.”
Client actually scraped out the win in the Ohio Supreme Court which pretty much ignored its prior case.
(There’s much more to all this, but it’s mostly privileged, sorry.)
about 7 months ago
Isn’t it fun when judges view the protections of the Constitution or statute as “technicalities”?
I may not have been able to resist the slow raising of one eyebrow if I were in your situation.
about 7 months ago
That’s just effing brilliant.
about 7 months ago
Thank you very much for a thought-provoking piece. People do in fact often use that term, and it is usually said with a tone of exasperation and consternation, as opposed to the celebratory tone it deserves.
Your exchange with Gamso has inspired my own blog entry on the same topic. I credit and quote you both.
about 7 months ago
It is, isn’t it? It irritates me.
about 7 months ago
The fundamental problem is that (as this non-lawyer understands it) voiding the arrest etc. that follows is the only penalty for the law enforcement officer who violates the constitution. If I enter someone’s house without permission, I get arrested. Should police officers be personally accountable for their illegal actions?