tag:theconversation.com,2011:/uk/topics/criminal-law-2946/articlesCriminal law – The Conversation2024-03-24T11:52:13Ztag:theconversation.com,2011:article/2238152024-03-24T11:52:13Z2024-03-24T11:52:13ZAddressing deepfake porn doesn’t require new criminal laws, which can restrict sexual fantasy and promote the prison system<figure><img src="https://images.theconversation.com/files/582946/original/file-20240319-28-spiry0.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6240%2C4156&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deepfake pornography plays a role in sexual fantasy and expression.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>After <a href="https://www.theverge.com/2024/1/25/24050334/x-twitter-taylor-swift-ai-fake-images-trending">deepfake pornography of Taylor Swift went viral</a> on the social media platform X (formerly Twitter), <a href="https://www.thecut.com/2024/01/taylor-swift-ai-deepfake-trending-social-media.html">Swifties sprung into action</a>. They organized to report violations of X’s “<a href="https://help.twitter.com/en/rules-and-policies/manipulated-media">Synthetic and Manipulated Media</a>” policy and flooded the platform with real images of Swift in an attempt to alter X’s algorithm.</p>
<p>The incident <a href="https://www.theguardian.com/music/2024/jan/26/taylor-swift-deepfake-pornography-sparks-renewed-calls-for-us-legislation">renewed calls for federal legislation</a> regarding deepfake porn. But whether we need to “<a href="https://www.wired.com/story/taylor-swift-deepfake-porn-artificial-intelligence-pushback/">defeat</a>” deepfake porn by <a href="https://www.theverge.com/2018/2/7/16982046/reddit-deepfakes-ai-celebrity-face-swap-porn-community-ban">censoring</a> and <a href="https://www.theguardian.com/society/2023/jun/27/sharing-deepfake-intimate-images-to-be-criminalised-in-england-and-wales">criminalizing</a> it is up for debate — or at least it should be. </p>
<p>As a criminologist and sexuality studies scholar with expertise in the <a href="https://carleton-ca.academia.edu/LaraKaraian">legal regulation of sex and sexual expression</a>, the push to conflate deepfake porn with misogyny and sexual harm is concerning, as is the call for new criminal laws.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/GgSduzVDV08?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">ABC News looks at the circulation of fake explicit images of Taylor Swift on X.</span></figcaption>
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<h2>Are deepfakes sexual violence?</h2>
<p>Deepfake refers to the use of artificially intelligent (AI) machine-learning applications to generate original but “fake” audio, images or videos that may appear authentic. Deepfake pornography (DFP) refers to products that are sexually explicit in nature. </p>
<p>According to a <a href="https://www.homesecurityheroes.com/state-of-deepfakes/#key-findings">2023 report by cybersecurity firm Home Security Heroes</a>, DFP makes up 98 per cent of all deepfake videos online, and 99 per cent of DFP features women. Notably, 94 per cent of these women work in the entertainment industry. </p>
<p>An <a href="https://regmedia.co.uk/2019/10/08/deepfake_report.pdf">earlier study of DFP by Deeptrace Labs</a> found that of those in the entertainment industry, most of the 10 most frequently represented individuals were actresses from western countries, followed by South Korean K-pop singers.</p>
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Read more:
<a href="https://theconversation.com/ai-can-now-create-fake-porn-making-revenge-porn-even-more-complicated-92267">AI can now create fake porn, making revenge porn even more complicated</a>
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<p>Given their gendered, sexual and seemingly “non-consensual” nature, DFP has been widely described as gender-based sexual violence requiring <a href="https://www.congress.gov/bill/117th-congress/house-bill/9631/text?s=1&r=79">greater civil and criminal regulation of both AI and deepfake porn producers</a>. </p>
<p>Others, however, suggest that deepfake porn may be <a href="https://cardozolawreview.com/deeply-fake-deeply-disturbing-deeply-constitutional-why-the-first-amendment-likely-protects-the-creation-of-pornographic-deepfakes/">deeply constitutional</a> sexual expression, and that new laws should be put off until more research about the impacts of pornographic deepfakes on those depicted, as well as on internet users, can be conducted. </p>
<p>Deepfake porn raises concerns about false representations — for instance, falsely depicting an individual as sexually active, into a certain type of sex or involved in the porn industry. Whether this constitutes sexual violence — even if a person is distressed by fake videos of them — is not self-evident.</p>
<p>Many valid reasons exist for why deepfake porn may be created and shared, and why it should not be interpreted or criminalized as “<a href="https://theconversation.com/ai-can-now-create-fake-porn-making-revenge-porn-even-more-complicated-92267">image based sexual abuse</a>” or “<a href="https://www.brookings.edu/wp-content/uploads/2016/05/sextortion1-1.pdf">virtual rape</a>.” These reasons include, but are not limited to the social value of sexual fantasy — including seemingly “deviant” fantasies — and the need to resist prison expansionism and the carceral state.</p>
<h2>Need for new laws?</h2>
<p>Deepfakes, as with the <a href="https://www.wired.com/story/meta-youtube-ai-political-ads/">cheapfakes</a> that preceded them, can be created for malicious purposes including harassment, spreading disinformation and extortion. In instances where the use of one’s image is deeply upsetting to the individual depicted, legal avenues such as civil privacy, intentional infliction of emotional distress, invasion of privacy laws that address “<a href="https://canlii.ca/t/sxjg">false light</a>” (making false or misleading claims about a person that cause harm to them) and take-down orders may help address their concerns. </p>
<p>When it comes to deepfake porn and minors, Canada’s child pornography and its <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-162.1.html">Intimate Images</a> provisions likely apply. And in cases where DFP images and videos are used to harass or extort individuals, laws already exist to address these harms. On or offline, however, there are reasons to resist <a href="https://doi.org/10.1093/socpro/spz013">pro-criminalization strategies</a>.</p>
<p>Queer and sex-radical feminists have long established that even though sex and gender are related, theories of gender oppression cannot wholly explain <a href="https://read.dukeupress.edu/books/book/1560/chapter/173938/Thinking-SexNotes-for-a-Radical-Theory-of-the">sex and sexual politics</a>. Importantly, <a href="https://doi.org/10.1080/15313204.2018.1474827">anti-sexual violence feminists and anti-carceral scholars</a> have pointed out the limits and harms of using criminal law to respond to sexual violence for sexual violence victims, the accused and society more broadly. </p>
<p>Before we can determine whether sexual violence is the best framework for describing and responding to deepfake porn, we need a better understanding of deepfake porn prosumers — those who produce, consume and share their creations — as well as the importance of sexual fantasy, at the individual and collective levels.</p>
<h2>Deepfake porn prosumers</h2>
<p>It’s becoming increasingly difficult to interview or conduct research with deepfake porn prosumers given how widely they are described as <a href="https://www.washingtonpost.com/technology/2018/12/30/how-fake-porn-opponents-are-fighting-back/">depraved</a>, as the embodiment of “<a href="https://doi.org/10.1080/23268743.2019.1675091">toxic geek masculinity</a>,” and as driven by an interest in <a href="https://www.vice.com/en/article/nekqmd/deepfake-porn-origins-sexism-reddit-v25n2">owning women’s bodies</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a man is silhouetted against a computer screen showing blurred out images" src="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=495&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=495&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=495&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=622&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=622&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=622&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Given what we know about the demographics of computer programmers and porn consumers, it’s likely that most DFP prosumers are men.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p>Research suggests, however, that many deepfake porn creators are hobbyists who are more interested in contributing “to the development of such technology as <a href="http://doi.org/10.22215/timreview/1282">solving an intellectual puzzle</a>… rather than as a way to trick or threaten people.” </p>
<p>It’s likely that most deepfake prosumers are men, given what we know about the demographics of <a href="https://datausa.io/profile/soc/computer-programmers">computer programmers</a> and <a href="https://www.statista.com/statistics/661314/gender-distribution-of-pornhubcom-website-traffic-in-selected-european-countries/">porn consumers</a>.</p>
<p>Insights from clinical practice suggests that when men do create “fake porn” misogyny rarely serves as a key motivator. Clinical psychologist David J. Ley observes that more of these cases are “driven by <a href="https://www.psychologytoday.com/ca/blog/women-who-stray/201901/the-psychology-behind-fake-porn">feelings of loss, shame, hope, and fantasy</a> than by misogyny and anger.” Similar to Photoshopped “porno collages,” deepfakes serve as a means to explore fantasies that are likely impossible to fulfill.</p>
<p>But is sexual fantasy a valid reason to create and share deepfake porn on public and paid platforms? </p>
<h2>Sexual fantasy and deepfakes</h2>
<p>Sexual fantasy is <a href="https://doi.org/10.1177/13634607221106667">more complicated</a> and more <a href="https://doi.org/10.1037/0033-2909.117.3.469">important to our sex lives and to our social well-being</a> than people typically realize or acknowledge. For many, sexual fantasy is private and limited to their mind’s eye. </p>
<p>Others, however, see sexual fantasy as something to be <a href="https://scholarship.law.wm.edu/wmlr/vol58/iss2/3">manifested as written text, images or digital files, and publicly shared</a> for free or for a fee. </p>
<p>Critical race feminist scholars have demonstrated that <a href="https://doi.org/10.15767/feministstudies.41.2.409">sexual fantasy is both a product of and productive of our complex realities</a>, but that a line can also be drawn between fantasy and reality given the important roles that fantasy plays in our individual and collective lives.</p>
<p>At the individual level, <a href="https://doi.org/10.1111/jsm.12734">a study that surveyed 1,516 adult cis men and women about their sexual fantasies</a> found that more than half of the respondents — 51.7 per cent of women and 61.9 per cent of men — fantasized about sex with a celebrity.</p>
<p>Sexual fantasy research has also helped establish that few sexual fantasies are statistically unusual or rare. This includes fantasies which have previously been deemed perverted or <a href="https://doi.org/10.1111/jsm.12734">atypical</a>, such as <a href="https://www.bloomberg.com/news/newsletters/2023-11-29/us-federal-laws-fail-to-protect-most-deepfake-pornography-victims">those that involve violence or humiliation</a>. These fantasies are not only common, but are also “<a href="https://doi.org/10.1016/j.copsyc.2022.101496">unlikely to be revealing of actual behavior</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="two pairs of women's legs wearing heels in red lighting" src="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=373&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=373&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=373&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fantasy plays an important role in individual and collective lives.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p>According to Ley, <a href="https://www.psychologytoday.com/ca/blog/women-who-stray/201901/the-psychology-behind-fake-porn">reasons for publicly sharing sexual fantasies</a> range from seeking approval, demonstrating technical prowess and playing with taboo to bonding with those who share the same interests or to arouse others in the way they are aroused so as to feel less alone for having these interests and desires. </p>
<p>As legal scholar Andrew Gilden writes: </p>
<blockquote>
<p>the actual process of coming to terms with one’s sexual identity often entails extensive fantasizing, experimentation, education, and social interaction. And these processes <a href="https://scholarship.law.wm.edu/wmlr/vol58/iss2/3/">are often far less romantic</a>, much less ‘dignified,’ and far less ‘PG’ than envisioned by the evolving legal narratives of sexuality.</p>
</blockquote>
<h2>Consent and fantasy</h2>
<p>Thinking about deepfake porn through the lens of sexual fantasy also helps us make sense of lack of consent in DFP. Consent does not factor into people’s sexual fantasies in the same ways as it does their physical sexual relations: I don’t need permission to fantasize about someone, but I do need permission to have sex with them. </p>
<p>Consent is a primarily <a href="https://www.leaf.ca/news/the-law-of-consent-in-sexual-assault/">legal term</a>, that, at its most general, means voluntary agreement to engage in sexual activity. The use of consent language to refer to the creative process of DFP as “image-based sexual abuse” or “virtual rape” shuts down a <a href="https://www.upress.umn.edu/book-division/books/sex-and-harm-in-the-age-of-consent">nuanced conversation about sexual harm and freedom</a>. </p>
<h2>Expanding definitions</h2>
<p>Ultimately, sexual fantasy cannot fully explain the phenomenon of deepfake porn. But failing to acknowledge the limits of gender-based sexual violence frameworks comes with its own harms, including the ever-growing definition of sex crime and the <a href="https://doi.org/10.1093/socpro/spz013">expansion of the carceral state</a>.</p>
<p>We need to think carefully about the social and cultural motivations and intent of content creators, in addition to the potential effects of their creations. We need to consider whether expanding the scope of criminal law to address emotional harm in virtual spaces will bring about the changes we want to see, including the reduction of sexual violence. We also need to acknowledge that criminal law has largely failed to prevent, and indeed <a href="https://www.ucpress.edu/book/9780520385818/the-feminist-war-on-crime#:%7E:text=In%20their%20quest%20to%20secure,and%20diverting%20resources%20toward%20law">perpetuates, emotional and physical violence at a level that requires great awareness and care</a>. </p>
<p>Concerns about sexual autonomy should inform debates about emerging technologies, but alternative frameworks for making sense of and responding to deepfake porn should be considered before we censor and criminalize deepfake porn producers, consumers and products.</p><img src="https://counter.theconversation.com/content/223815/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lara Karaian receives funding from the Social Sciences and Humanities Research Council.</span></em></p>Deepfake pornography raises questions about consent, sexuality and representation. The issue is more complicated than online misogyny — new criminal laws are not our best response.Lara Karaian, Associate Professor, Criminology and Criminal Justice, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247302024-02-29T02:33:54Z2024-02-29T02:33:54ZCan Trump be prosecuted? Supreme Court will take up precedent-setting case to define the limits of presidential immunity<figure><img src="https://images.theconversation.com/files/578791/original/file-20240228-18-4t2s64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks to the media following his appearance at the District Court in Washington, D.C., on Jan. 9, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-to-the-media-at-news-photo/1912962647?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p><em>The U.S. Supreme Court announced on Feb. 28, 2024, that it <a href="https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html">will consider the momentous issue</a> of whether Donald Trump is immune from criminal prosecution, delaying the federal prosecution of the former president for his alleged efforts to subvert the 2020 election.</em> </p>
<p><em>A lower court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled on Feb. 6 that <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf">Trump could be prosecuted</a>, rejecting his claims of immunity. Trump appealed that ruling to the Supreme Court.</em></p>
<p><em><a href="https://scholar.google.com/citations?user=7cOGzcwAAAAJ&hl=en">Claire Wofford</a>, a political scientist who teaches constitutional law and American government at the College of Charleston, <a href="https://theconversation.com/trump-was-not-king-and-can-be-prosecuted-for-crimes-committed-while-president-appeals-court-places-limits-on-immunity-221843">analyzed that previous ruling for The Conversation</a>. Senior politics and democracy editor Naomi Schalit asked Wofford to answer questions here about the Supreme Court’s decision to consider the Trump immunity case.</em></p>
<p><strong>What question did the Supreme Court say it will address by taking this case?</strong></p>
<p>In agreeing to hear this case, the Supreme Court justices said they will decide whether or not Trump is immune from criminal prosecution by Special Counsel Jack Smith for his alleged attempt to overturn the results of the 2020 presidential election. Until that question is answered, Smith’s prosecution – which was <a href="https://www.npr.org/2024/02/28/1231974416/supreme-court-trump-immunity">already on hold</a> during the lower court deliberations – <a href="https://www.reuters.com/legal/us-supreme-court-decide-trump-criminal-immunity-claim-2020-election-case-2024-02-28/">cannot move forward</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a black jacket and red tie and walks down steps outside, flanked by two men also in suits." src="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former President Donald Trump leaves a press conference following his appearance at the D.C. Appeals Court on Jan. 9, 2024. The court considered the claim that he is immune from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-departs-the-waldorf-news-photo/1913158135?adppopup=true">Kent Nishimura/Getty Images</a></span>
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<p><strong>Is there something that’s not obvious about how the Supreme Court stated this question?</strong></p>
<p><a href="https://www.supremecourt.gov/orders/courtorders/022824zr3_febh.pdf">The precise phrasing</a> of the question the Supreme Court said it will answer is interesting: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The court stated it will answer not only whether Trump might have immunity but also “to what extent” that immunity exists. </p>
<p>This raises the possibility that rather than simply answer if Trump does or does not have immunity, the court may be looking to extend immunity to some of Trump’s actions and not others. It could also indicate that at least some justices believe future presidents should enjoy some immunity from criminal prosecutions for actions they took while in office, but that this should not extend to what it is alleged Trump did in this Jan. 6 case. </p>
<p>Making this kind of distinction – which the D.C. Circuit ruling did not – could explain why at least four justices on the Supreme Court agreed to hear the case. Rather than simply affirm – or reverse – the lower court, the justices may be interested in making a more nuanced ruling than the lower courts have done. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The top half of the Supreme Court building, including pillars, is seen on a gray day. The U.S. flag waves above it." src="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court is seen on Feb. 28, 2024, the day it announced that it would hear the case regarding former President Donald Trump’s immunity from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-february-28-2024-news-photo/2038351010?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>How will this affect the timing of the Jan. 6 prosecution?</strong></p>
<p>For now, the federal prosecution in the Jan. 6 case will remain on hold. </p>
<p>The Supreme Court has set oral arguments in the case for April 22, 2024, and would presumably issue a decision by June. That decision could be delayed, however, if the justices are not able to reach an agreement or one or more of them wish to write separate opinions. </p>
<p><strong>Is this going to be a historic decision?</strong></p>
<p>Absolutely. Even if the Supreme Court were to simply state that Trump does or does not have immunity from criminal prosecution, that alone would be a major new statement of constitutional doctrine. </p>
<p>If the justices go further and specify circumstances in which immunity would or would not apply to a former president, that would also be a very significant legal development. </p>
<p>In any event, given that the ruling will determine whether Smith’s federal case against Trump moves forward, the decision will likely make both legal and political history.</p><img src="https://counter.theconversation.com/content/224730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a case that will make legal and political history, the US Supreme Court will consider whether Donald Trump is immune from criminal prosecution for his alleged effort to undermine the 2020 election.Claire Wofford, Associate Professor of Political Science, College of CharlestonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205802024-01-08T19:02:22Z2024-01-08T19:02:22ZTrump’s arguments for immunity not as hopeless as some claim<figure><img src="https://images.theconversation.com/files/568063/original/file-20240105-27-bf9x5s.jpg?ixlib=rb-1.1.0&rect=20%2C0%2C6689%2C4476&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump has claimed that presidents are immune from prosecution for official acts.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiotHarassment/8742cb120b814b02a1475cc58dfd3e9f/photo">AP Photo/Toby Brusseau</a></span></figcaption></figure><p>Former President Donald Trump’s claims of immunity from criminal prosecution will be argued before the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 9, 2024 – on an <a href="https://www.law.cornell.edu/wex/interlocutory_appeal">interlocutory appeal</a> from his trial for election interference. His arguments have been <a href="https://www.nytimes.com/2023/12/01/us/politics/trump-chutkan-immunity.html">rejected by a district court judge</a>, and the Supreme Court has <a href="https://www.cbsnews.com/news/supreme-court-declines-to-fast-track-trump-immunity-dispute-in-blow-to-special-counsel/">declined to weigh in</a> – for now. </p>
<p>Commentators have described his immunity arguments as “<a href="https://www.theguardian.com/us-news/2024/jan/01/donald-trump-legal-problems-ex-president-strategy">frivolous</a>” and “<a href="https://www.msnbc.com/opinion/msnbc-opinion/donald-trump-immunity-claim-rcna119695">absurd</a>.” But such accounts underestimate the arguments’ weight and at times misconstrue them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in a coat and tie stands in front of an American flag." src="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special counsel Jack Smith is leading the federal prosecutions against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiot/e5bdeb21b0e84ddf9dd175e866831b32/photo">AP Photo/J. Scott Applewhite</a></span>
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<h2>A related absolute immunity already exists</h2>
<p>Trump claims he is immune from <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf">federal charges on seeking to overturn the 2020 elections</a>.</p>
<p>His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity. Trump’s lawyers are not claiming that he couldn’t be prosecuted for, say, <a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters">shooting a pedestrian on 5th Avenue</a>. They are saying he can’t be prosecuted for so-called “official acts.”</p>
<p>A related immunity has been recognized in the past. </p>
<p>In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions. The principal rationale for this immunity was to allow the president “<a href="https://supreme.justia.com/cases/federal/us/457/731/">maximum ability to deal fearlessly and impartially with the duties of his office</a>.” The case described the president as “<a href="https://supreme.justia.com/cases/federal/us/457/731/">the officeholder [who] must make the most sensitive and far-reaching decisions</a> entrusted to any official under our constitutional system,” and held that the Constitution ensured he was not “<a href="https://supreme.justia.com/cases/federal/us/457/731/">unduly cautious in the discharge of his official duties</a>.” Presidents should not take official actions with the fear of civil liability hanging over their heads.</p>
<p>The question remained whether a president could be criminally charged for his official actions.</p>
<p>Trump claims he cannot. He argues that just as the Constitution protects presidents from civil lawsuits, it also protects them from criminal charges – and for an analogous reason: preserving the president’s ability to make official decisions free from the fear of criminal prosecution. </p>
<p>The brief of special counsel Jack Smith responded that it is actually <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">good if presidents are worried about possible criminal liability</a>. Moreover, while immunity to civil liability makes sense, because civil lawsuits can be filed by practically everyone and for myriads of petty reasons, criminal charges usually relate to weightier concerns, and their filings involve various checks and balances. </p>
<p>Nevertheless, it is conceivable that courts would recognize presidential criminal immunity for official acts. If they do, the question would become how to define “official acts,” and whether the actions forming the basis for Trump’s charges, which include <a href="https://apnews.com/article/donald-trump-investigation-2024-joe-biden-05d0d0d7a0adbec796caecdc6862588b">many interactions with state and federal officials</a>, qualify under that definition. It seems reasonable to believe that many of them do not and are better described as the acts of a candidate seeking reelection. But some of these acts might qualify. </p>
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<h2>The complication from the impeachment clauses</h2>
<p>Yet, the argument for absolute criminal immunity faced a preliminary hurdle: <a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-7">Article 1, Section 3, of the U.S. Constitution</a> states that while “Judgment in Cases of Impeachment shall not extend further than to removal from Office … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, the Constitution explicitly contemplates the criminal prosecution of a president.</p>
<p>As a brief by the special counsel put it, “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.109.0.pdf">the Impeachment Judgment Clause entirely undermines the defendant’s claim</a> that a former president’s immunity from criminal prosecution should be ‘absolute’ … because a former president who has been impeached and convicted will be liable to criminal prosecution.”</p>
<p>Trump’s response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only <a href="https://www.cnn.com/2021/02/13/politics/senate-impeachment-trial-day-5-vote/index.html">57 senators voted to convict him</a>, short of the 67 needed – he was not liable for criminal prosecution. </p>
<p>Trump’s response became the subject of much disparagement. The New York Times called it an “<a href="https://www.nytimes.com/2024/01/02/us/politics/trump-appeals-court-immunity.html">even more audacious argument</a>” than his claim of absolute immunity. But some of that criticism derives from an uncharitable interpretation of Trump’s claims. </p>
<p>Some critics construed the claim to mean that all officials who are subject to impeachment proceedings – which include “<a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-4">The President, Vice President and all Civil Officers of the United States</a>” – could not face criminal charges for official acts unless they were first impeached and convicted of them. </p>
<p>A group of former government officials and constitutional lawyers wrote in a legal brief that Trump’s argument “<a href="https://democracy21.org/wp-content/uploads/2023/12/23-3228-Amici-Br.-of-Former-Govt-Officials-and-Constitutional-Lawyers-No.-23-3228-DC-Cir.pdf">would permit countless officials to evade criminal liability</a>.” They went on to say, “Such an outcome would … contradict decades of practice in which the Executive Branch has prosecuted, and the Judicial Branch has convicted, civil officers for crimes committed while in office – regardless of whether they were first convicted in an impeachment trial.” The special counsel made <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">similar objections</a>. </p>
<p>Indeed, impeachment proceedings are <a href="https://www.loc.gov/nls/new-materials/book-lists/the-history-of-impeachment/">very rare</a>, and most eligible offenders never face an impeachment. Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office. </p>
<p>But these strike me as straw-man arguments. Trump’s claim that a president must be impeached and convicted before he can be criminally liable for official acts is premised on the background absolute immunity Trump has claimed for the presidency. To quote from Trump’s brief before the district court: “<a href="https://s3.documentcloud.org/documents/24015079/trump-motion-to-dismiss.pdf">President Trump was acquitted</a> … after trial in the Senate, and he thus remains immune from prosecution.” </p>
<p>The key word is “remains” because, in Trump’s argument, the impeachment clause provides an exception to the alleged background presidential immunity: Presidents are criminally immune for their official actions, unless they are impeached and convicted for them. In other words, nothing in Trump’s argument prevents the criminal indictment of civil officers who have not been impeached at all, because they do not enjoy absolute criminal immunity to begin with.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of a formal legislative chamber with many people standing at their desks and on a dais." src="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the U.S. Senate are sworn in Jan. 26, 2021, before beginning the second impeachment trial of Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressExplainingTrumpImpeachmentTrial/ee7eea151da8428e99603baf2320052f/photo">Senate Television via AP</a></span>
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<h2>Does acquittal in an impeachment proceeding create or preserve criminal immunity?</h2>
<p>In his late briefs, Trump adds a second line of defense: He claims that his impeachment acquittal independently forestalls his criminal trial because of the ban on <a href="https://constitution.congress.gov/constitution/amendment-5/">“double jeopardy</a>.” That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not. The claim would work only if Trump’s impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel. </p>
<p>But the claim, in any case, is weak and at odds with some other statements Trump’s briefs make. Indeed, since impeachment proceedings are <a href="https://www.govinfo.gov/content/pkg/CPRT-116HPRT38513/html/CPRT-116HPRT38513.htm">not limited to official acts</a>, accepting Trump’s double jeopardy argument would mean that a president could also become immune for unofficial criminal conduct – such as shooting a pedestrian on 5th Avenue – if he were impeached for that act but acquitted. </p>
<p>That argument proves too much, and would also be at odds with then-President Bill Clinton’s agreement to a five-year suspension of his Arkansas law license in a <a href="https://www.nytimes.com/2001/01/19/politics/clinton-reaches-deal-to-avoid-indictment-to-give-up-law-license.html">settlement aimed at preventing his subsequent criminal prosecution for perjury</a> – even though he was acquitted in the <a href="https://guides.loc.gov/federal-impeachment/bill-clinton">impeachment proceeding for that unofficial act</a>.</p>
<p>The stronger version of Trump’s impeachment clauses argument presumes the president’s absolute immunity for official acts. Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not. That is why Trump’s brief states, “<a href="https://www.washingtonpost.com/documents/f25cf425-77ad-4524-8101-fdfabc62ecd7.pdf">A former President is subject to criminal process for his unofficial conduct</a>; and he is subject to criminal prosecution for official acts for which he has been impeached and convicted.” Against a background of absolute immunity, Trump’s impeachment clauses argument is not unreasonable.</p>
<p>It all sounds a bit complicated, but the ensuing conclusion is simple: The impeachment clauses debate is a sideshow. The principal action in this appeal is whether presidents have absolute criminal immunity for official acts. </p>
<p><a href="https://www.newsweek.com/donald-trump-indictment-joe-biden-truth-social-1839004">In our present political culture</a>, Trump’s arguments for criminal immunity – and his corollary take on the impeachment clauses – may be seen by some judges and justices as stronger than some critics anticipate.</p><img src="https://counter.theconversation.com/content/220580/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president has raised several legal arguments that do not yet have clear answers. A constitutional scholar says they’re questions worth asking.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2161342023-10-23T12:25:56Z2023-10-23T12:25:56ZKey Trump co-defendants accept plea deals – a legal expert explains what that means<figure><img src="https://images.theconversation.com/files/555062/original/file-20231020-27-i8c42b.jpg?ixlib=rb-1.1.0&rect=20%2C10%2C6887%2C4588&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenneth Chesebro, left, is sworn in during his plea deal hearing in Atlanta on Oct. 20, 2023.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionIndictment/3e9f856573cb416c9b45ea3dfea0d620/photo">Alyssa Pointer/Pool Photo via AP</a></span></figcaption></figure><p><em><a href="https://apnews.com/article/sidney-powell-plea-deal-georgia-election-indictment-ec7dc601ad78d756643aa2544028e9f5">Sidney Powell</a> and <a href="https://apnews.com/article/chesebro-jury-selection-georgia-election-indictment-2e558eefdffd9c1eaa7ec8c31bf76044">Kenneth Chesebro</a>, two people <a href="https://theconversation.com/fulton-county-charges-donald-trump-with-racketeering-other-felonies-a-georgia-election-law-expert-explains-5-key-things-to-know-211582">charged in Georgia with racketeering and other crimes</a> alongside former President Donald Trump, have accepted plea deals that let them avoid the jail time their original charges could have imposed. In exchange, they each agreed to provide testimony in the case.</em></p>
<p><em>The Conversation U.S. asked <a href="https://scholar.google.com/citations?user=ySfVNFAAAAAJ&hl=en&oi=ao">Cynthia Alkon</a>, a law professor at Texas A&M University School of Law who studies plea bargaining, to explain what these legal agreements are and how they work.</em></p>
<h2>1. What is a plea deal, or plea bargain, and how is it made?</h2>
<p>A plea deal is a negotiated agreement between the prosecution and defense to settle a criminal case without going to trial. <a href="https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice">Well over 90%</a> of resolved criminal cases end through plea deals and not jury trials. </p>
<p>The criminal legal system relies on plea bargaining to manage caseloads. Supreme Court Justice Anthony Kennedy, in the 2012 case <a href="https://www.oyez.org/cases/2011/10-209">Lafler v. Cooper</a>, recognized this when he wrote that “criminal justice today is for the most part a system of pleas, not a system of trials.” </p>
<p>Plea deals may include agreements to dismiss charges or reduce charges. The plea negotiation process varies. The defendant might accept the first offer the prosecutor makes, or there might be extended back and forth between the defense and prosecution. Plea deals can also include conditions, such as that the defendant agree to testify against a co-defendant or in another case. </p>
<p>In many cases, the charges are straightforward, the defendant has no particular defense, and the prosecution offer will be accepted <a href="https://www.law.cornell.edu/wex/arraignment">at arraignment</a>, which is the first time a defendant appears in court. In other cases, the risk in going to trial is high, meaning the defendant could get sentenced to a much longer term in prison, and defendants choose to take the plea offer rather than <a href="https://texaslawreview.org/plea-bargainings-uncertainty-problem/">risk a worse outcome</a> after trial.</p>
<h2>2. Why do prosecutors use plea deals?</h2>
<p><a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/anatomy-discretion-analysis-prosecutorial-decision-making-summary">Prosecutors have extraordinary power</a> in the criminal legal system and are able to decide what charges to file and whether to make a plea offer. In most cases, the prosecutor will make a plea offer at some point. Defendants have no constitutional right to a plea deal – in fact, plea deals require defendants to <a href="https://www.law.cornell.edu/wex/plea_bargain">waive three key constitutional rights</a>: the right to a jury trial, to confront witnesses and to avoid self-incrimination. </p>
<p>Prosecutors rely on plea bargaining at times to strengthen their cases by offering deals contingent on a defendant agreeing to testify against another person. In the <a href="https://www.nytimes.com/2023/10/20/us/kenneth-chesebro-trump-guilty-plea-georgia.html">deals accepted by both Chesebro and Powell</a>, they each agreed to cooperate with prosecutors and provide testimony in the case whose defendants include Trump.</p>
<p>In more serious cases, such as murder, plea deals are less frequent, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4036850">but still happen regularly</a>. Prosecutors may make offers with time conditions, such as the offer is good “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2994581">today only</a>.” If the defendant doesn’t accept by the deadline, the plea deal will be withdrawn. </p>
<p>The plea deal could also be withdrawn if the prosecutor gets new evidence, including information about additional prior convictions or that a <a href="https://www.altoonamirror.com/news/local-news/2022/06/man-loses-appeal-of-da-plea-bargain-withdrawal/">new criminal case has been filed against the defendant</a>. </p>
<h2>3. Why do defendants use plea deals?</h2>
<p>Defendants often do not have many options, and they generally have <a href="https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/">far less power and fewer resources than the prosecution</a>. Due to the serious consequences of criminal convictions, including the possibility of long periods of time in prison, defendants are often left to <a href="https://doi.org/10.1007/s12103-020-09564-y">choose between a bad plea offer and a worse outcome</a> if they go to trial.</p>
<p>The <a href="https://www.brookings.edu/articles/the-unequal-burden-of-crime-and-incarceration-on-americas-poor/">vast majority</a> of people arrested and charged with crimes are poor. Criminal defendants are <a href="https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/">disproportionately people of color</a>, <a href="https://doi.org/10.1192%2Fbjo.2022.63">people with mental illness</a>, people with <a href="https://doi.org/10.1007%2Fs11920-013-0414-z">substance abuse problems</a> and who have <a href="https://doi.org/10.1080%2F13218719.2020.1855267">suffered from trauma</a> or have <a href="https://bja.ojp.gov/sites/g/files/xyckuh241/files/media/document/victims-witnesses-defendant.pdf">cognitive or other disabilities</a>.</p>
<p>Indigent legal services, such as public defender offices, <a href="https://www.reuters.com/world/us/us-public-defenders-could-lose-hundreds-staff-budget-shortfall-officials-2023-07-19/">continue to be underfunded</a>, and defendants may not have access to a lawyer, or their lawyer may not have time or resources to provide competent legal assistance. </p>
<p>Defendants may agree to take a plea deal because they <a href="https://www.justia.com/criminal/plea-bargains/reasons-to-accept-a-plea-bargain/">do not want to risk going to trial</a> or they do not want to spend the time to wait to go to trial. <a href="https://www.justia.com/criminal/plea-bargains/reasons-to-accept-a-plea-bargain/">Concerns about wait times for trial</a> can be even more of an issue for defendants who are in jail and are offered a “<a href="https://www.law.cornell.edu/wex/time_served">time served deal</a>.” In such situations, if they accept the plea deal, they will get out of jail immediately. If not, they may have to wait in jail for weeks or months for their trial. </p>
<p>Defendants also decide to accept plea deals because they are afraid of the consequences of going to trial. If a case carries a potential jail or prison term, defendants may decide to accept a deal to <a href="https://www.justia.com/criminal/plea-bargains/reasons-to-accept-a-plea-bargain/">avoid going to jail or to avoid going for a longer term</a>. But defendants may decide to reject a plea deal because they think it is not fair, or if they are innocent, although some studies indicate that the innocent may be <a href="https://www.jstor.org/stable/23364853">even more risk averse and more likely to plead guilty</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a black robe sitting in front of an American flag and another flag, holding a piece of paper and pointing." src="https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555100/original/file-20231021-29-e8xnpp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County Superior Court Judge Scott McAfee hears motions from attorneys representing Kenneth Chesebro and Sidney Powell in Atlanta on Sept. 14, 2023.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionIndictment/e903115e35364c63afae069988fd7c35/photo?Query=Donald%20Trump%20chesebro%20powell&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=86&currentItemNo=61">Miguel Martinez/Atlanta Journal-Constitution via AP, Pool</a></span>
</figcaption>
</figure>
<h2>4. What is the judge’s role in a plea deal?</h2>
<p>The judge has to agree to the plea deal, but it is unusual for a judge to reject a plea deal. </p>
<p>If the prosecutor does not make an offer, the defendant may decide to do what’s called “<a href="https://www.nolo.com/legal-encyclopedia/what-open-plea.html">plead open” to the court</a>, bypassing the prosecutor and putting their sentence in the hands of the judge. Depending on the jurisdiction, this might be after the judge has indicated what the sentence would be. </p>
<p>Judges do not have the authority to dismiss charges on their own, without prosecution agreement, if a defendant pleads guilty. In some jurisdictions, judges may discuss the plea offer from the prosecutor with the defendant and encourage them to take the deal, though in some circumstances that might <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/hoflr32&div=52&id=&page=">look like coercion</a> by the judge. </p>
<p>In the federal system, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_11">judges are not allowed to have any discussion</a> about plea bargaining with the parties. </p>
<h2>5. Is a person who accepts a plea deal still held accountable for the crimes they were charged with?</h2>
<p>Yes, they are still held accountable after a plea deal. Defendants who plead guilty – or in some circumstances “<a href="https://www.law.cornell.edu/wex/nolo_contendere">no contest</a>” – are convicted of whatever charges they plead to. This means they will have a criminal record and have to do whatever the agreed sentence is. </p>
<p>In addition to probation, jail or prison time, and/or fines, a criminal conviction may <a href="https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/">disqualify someone from a professional license</a>. It may disqualify them from <a href="https://studentaid.gov/understand-aid/eligibility/requirements/criminal-convictions">federal student loans</a>, <a href="https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/">housing</a> and <a href="https://www.ncsl.org/elections-and-campaigns/felon-voting-rights">voting</a>. And depending on the charge, it could <a href="https://www.usatoday.com/story/news/nation/2022/04/12/can-get-housing-felony-hud-says-yes/9510564002/">limit where they can live</a>. <a href="https://niccc.nationalreentryresourcecenter.org/">Criminal convictions can also make it</a> <a href="https://www.nbcnews.com/politics/finding-jobs-with-criminal-record-hard-despite-millions-of-openings-rcna120082">harder to get jobs</a>. </p>
<p>One of the concerns about plea bargaining is that its <a href="https://ssrn.com/abstract=4028883">overuse has contributed to mass incarceration</a>, as millions have been sentenced to jail and prison after a plea deal. This stands in contrast to the more unusual Powell and Chesebro plea deals, as both defendants had the advantage of resources, strong legal representation and leverage, which enabled them to successfully negotiate to avoid jail time in exchange for testimony.</p><img src="https://counter.theconversation.com/content/216134/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cynthia Alkon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With co-defendants of Donald Trump accepting plea bargains, an expert in criminal law explains what these legal agreements are and how they work.Cynthia Alkon, Professor of Law, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2052802023-09-27T12:27:32Z2023-09-27T12:27:32ZHip-hop on trial: When can a rapper’s lyrics be used as evidence in a criminal case?<figure><img src="https://images.theconversation.com/files/550095/original/file-20230925-15-k47xmb.jpg?ixlib=rb-1.1.0&rect=0%2C139%2C3000%2C1293&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Brooklyn rapper 6ix9ine's lyrics were used against him during his criminal trial in 2019.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rapper-tekashi-6ix9ine-performs-during-the-miamibash-2021-news-photo/1359692864">John Parra/Getty Images</a></span></figcaption></figure><p>When <a href="https://www.cnn.com/2023/09/08/us/kenjuan-mcdaniel-nevada-rapper-arrested-murder/index.html">police arrested Nevada rapper</a> Kenjuan McDaniel on a murder charge in August 2023, they cited a <a href="https://www.youtube.com/watch?v=j9PEkytzyqg">music video he posted on YouTube</a> that they say includes details of a 2021 killing that had not been made public.</p>
<p>McDaniel, who uses the social media handle TheBiggestFinn4800, had previously been <a href="https://www.washingtonpost.com/nation/2023/09/11/las-vegas-rapper-murder-song/">considered a person of interest</a> in the case. His lyrics included: “Parked the car / double back on feet / the smartest way to slide / drove in / double lock yo man / make sure you get yo bod’.”</p>
<p>As a <a href="https://theconversation.com/critical-race-theory-what-it-is-and-what-it-isnt-162752">critical race theory</a> scholar who <a href="https://scholar.google.com/citations?user=HLGeVBwAAAAJ&hl=en&oi=ao">researches systems of oppression</a>, I know McDaniel’s case is not unique. Lawyers have used rappers’ lyrics as <a href="https://casetext.com/case/us-v-foster-106">evidence in criminal cases</a> since shortly after the <a href="https://ssrn.com/abstract=3274067">rise of gangsta rap</a> in the late 1980s.</p>
<p>Rap lyrics were introduced as evidence in criminal cases against San Francisco Bay Area rapper <a href="https://www.kqed.org/news/11954252/did-mac-dre-really-go-to-prison-because-of-his-lyrics">Andre “Mac Dre” Hicks in 1992</a>, <a href="https://www.nytimes.com/2022/08/26/arts/music/california-rap-lyrics-bill-young-thug.html">Snoop Dogg in 1996</a>, <a href="https://www.theguardian.com/us-news/2022/sep/03/california-mckinley-mac-phipps-rap-music-black-rappers">McKinley “Mac” Phipps, Jr. in 2000</a>, <a href="https://www.latimes.com/archives/la-xpm-2012-may-10-la-na-nn-rap-lyrics-at-heart-of-murder-trial-20120510-story.html">Lil Boosie in 2012</a>, <a href="https://perma.cc/QX6Y-EYG6">Drakeo the Ruler in 2016</a>, <a href="https://www.courtlistener.com/docket/14608592/340/united-states-v-jones/">6ix9ine in 2019</a> and <a href="https://time.com/6192371/young-thug-rap-lyrics-evidence-court/">Young Thug in 2022</a>.</p>
<p>In fact, researchers at the University of Richmond documented at least <a href="https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html">500 cases from 2009 to 2019</a> where rap lyrics were introduced as evidence in criminal trials.</p>
<figure class="align-center ">
<img alt="Young Thug performs on stage." src="https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A 2022 indictment against Young Thug cited his lyrics and music videos.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.ca/detail/news-photo/young-thug-performs-at-bumbershoot-at-seattle-center-on-news-photo/1026085622">Suzi Pratt/WireImage via Getty Images</a></span>
</figcaption>
</figure>
<h2>Rap lyrics as criminal evidence</h2>
<p>Both federal and state courts have <a href="https://core.ac.uk/download/pdf/56358301.pdf">established rules</a> that require the use of a balancing test to determine whether to exclude evidence. </p>
<p>If prosecutors can show that a rapper’s lyrics establish motive, intent or identity related to an alleged crime, then <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989443">most judges will allow</a> for the evidence to be used.</p>
<p>Judges are expected to balance whether the proof outweighs any prejudicial value – or tendency to unfairly or improperly influence the jury. For example, under this balancing test, a defendant rapper’s lyrics should be excluded if the lyrics will do more to poison the jury against the defendant than to establish their connection to a specific crime. </p>
<p>But case law regarding using rap lyrics as evidence of a crime can vary from state to state, and judge to judge.</p>
<p>In 2014, the New Jersey Supreme Court found that the introduction of a defendant rapper’s lyrics <a href="https://casetext.com/case/state-v-skinner-72">should not have been admitted into evidence</a>, because the lyrics were general in nature and did not demonstrate motive or intent. Instead, the court found, the lyrics served to activate particular biases the jury had against rap and, as a result, the defendant rapper. </p>
<p>In 2020, the Maryland Court of Appeals decided that a defendant rapper’s lyrics – despite also lacking specific details related to the alleged crime – <a href="https://scholar.google.com/scholar_case?case=16414693362328239925&hl=en&as_sdt=6&as_vis=1&oi=scholarr">could be admitted as evidence</a>. According to the judge, the lyrics intended to intimidate witnesses prior to the trial. To be clear, the defendant rapper recorded the lyrics from a detention center 10 months after the alleged murder he was being held for, and three weeks before his trial. Essentially, the court focused more on the timing of the lyrics in relationship to the trial and a completely new alleged crime, not the commission of the crime the rapper was being held for, or the substance of his recorded lyrics.</p>
<h2>Criminalizing Black artists</h2>
<p>Using rap lyrics as evidence in criminal cases is problematic not only because it can deny a defendant a fair trial, but also because many lyrics are creative, metaphorical works that have double meanings or are based on fictional experiences.</p>
<p>In 1991, <a href="https://casetext.com/case/us-v-foster-106">federal prosecutors demonstrated</a> that a defendant rapper knowingly possessed and intended to distribute drugs that he was carrying in two suitcases upon his arrest. During the trial, the defendant rapper claimed he was not aware of the contents of the suitcase. Prosecutors introduced the defendant rapper’s notebook, which included the following lyrics: “Key for key. Pound for pound. I’m the biggest dope dealer and I serve all over town … ” </p>
<p>During the trial, prosecutors submitted evidence to demonstrate that the word “key” was common slang used in cocaine trafficking to refer to kilogram. In this instance, the defendant rapper’s lyrics were accepted as autobiographical, and not metaphorical. They qualified as one of the only pieces of evidence to establish criminality.</p>
<p>While there have been <a href="https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html">hundreds of cases</a> in the past 30 years brought against defendant rappers to use their rap lyrics as evidence of a crime, similar charges have not been brought against creatives in other genres at the same rate. Some scholars have suggested that this difference in treatment is, in part, a result of rap lyrics oftentimes <a href="https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1392&context=elr">being excluded from certain First Amendment protections</a>. </p>
<p>As a result, allowing a rap artist’s lyrics to be used as evidence of a crime risks weaponizing an art form dominated by Black and other people of color. As it is, Black Americans are already incarcerated in state prisons at <a href="https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/">nearly five times</a> the rate as white Americans.</p>
<figure class="align-center ">
<img alt="Microphone with handcuffs." src="https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Two states have tried to limit lyrics being used as evidence in criminal cases.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.ca/detail/photo/microphone-with-handcuffs-royalty-free-image/1271650098?phrase=music++arrested">Talaj/iStock via Getty Images</a></span>
</figcaption>
</figure>
<h2>Protecting artistic expression</h2>
<p>In recent years, lawmakers in <a href="https://www.rollingstone.com/music/music-news/california-bill-banning-rap-lyrics-as-evidence-heads-to-governor-1234579851/">California</a> and <a href="https://www.billboard.com/pro/rap-lyrics-law-passes-new-york-senate-young-thug/">New York</a> have sought to limit the use of rap lyrics in evidence of criminality. </p>
<p>California <a href="https://www.usatoday.com/story/news/politics/2022/10/03/california-rap-lyrics-court-evidence/8167269001/">passed a bill</a> in September 2022 that would ban lyrics from being cited in court cases unless prosecutors can illustrate that the words are directly relevant to the case in question and won’t “inject racial bias into the proceedings.” The New York bill was introduced in January 2023 and aims to leverage statewide free speech protections to ensure criminal defendants are tried based on evidence and not on their artistic works. That bill <a href="https://www.nysenate.gov/legislation/bills/2021/S7527">is currently stalled</a>. </p>
<p>In July 2022, Democratic Rep. Hank Johnson of Georgia introduced the <a href="https://www.congress.gov/bill/117th-congress/house-bill/8531/all-actions">Restoring Artistic Protection Act</a>, or RAP Act. The federal legislation aims to <a href="https://www.congress.gov/117/bills/hr8531/BILLS-117hr8531ih.pdf">limit the admissibility of artistic expression as evidence</a>. </p>
<p>Since most <a href="https://law.duke.edu/lib/research-guides/court-rules/">state evidence law</a> is based on federal rules of evidence, the RAP Act could create a new standard in most states for limitation of rap lyrics as evidence of a crime. However, it has been awaiting review in the House Subcommittee on Crime, Terrorism, and Homeland Security. </p>
<h2>Case for caution</h2>
<p>English jurist <a href="https://lonang.com/wp-content/download/Blackstone-CommentariesBk4.pdf">William Blackstone asserted</a> in the 1760s that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that 10 guilty persons escape, than that one innocent suffer.” </p>
<p>I believe admitting rap lyrics as evidence violates constitutional free speech considerations – especially considering the lyrics may be fictitious. The probability of prejudice against defendants who are rappers in any scenario, unfortunately, in 2023 is still too high. Prohibiting the use of lyrics can help ensure that not “one innocent suffer.”</p><img src="https://counter.theconversation.com/content/205280/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Taifha Natalee Alexander does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A critical race theory scholar explains why it’s problematic to use rap lyrics as evidence of a crime, and what some lawmakers are doing to protect artistic expression.Taifha Natalee Alexander, CRT Forward Project Director, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2142252023-09-24T18:24:50Z2023-09-24T18:24:50ZMenendez indictment looks bad, but there are defenses he can make<figure><img src="https://images.theconversation.com/files/549871/original/file-20230924-21-ath6uu.jpeg?ixlib=rb-1.1.0&rect=5%2C0%2C1985%2C1326&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Foreign Relations Committee Chairman Sen. Bob Menendez, D-N.J., and his wife, Nadine Arslanian Menendez.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MenendezBriberyDeveloper/4219da16c3724960a83927459e24e8ef/photo?Query=Menendez&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5321&currentItemNo=4">AP Photo/Susan Walsh, File</a></span></figcaption></figure><p><em>Reactions came quickly to the <a href="https://www.nytimes.com/interactive/2023/09/22/nyregion/menendez-indictment-document.html">federal indictment</a> on Sept. 22, 2023, of New Jersey’s senior U.S. senator, Democrat Bob Menendez. New Jersey Gov. Phil Murphy joined other state Democrats <a href="https://www.politico.com/news/2023/09/22/new-jersey-democrats-menendez-indictment-00117693">in urging Menendez to resign</a>, saying, “The alleged facts are so serious that they compromise the ability of Senator Menendez to effectively represent the people of our state.”</em></p>
<p><em>The <a href="https://www.justice.gov/usao-sdny/pr/us-senator-robert-menendez-his-wife-and-three-new-jersey-businessmen-charged-bribery">indictment charged Menendez</a>, “his wife NADINE MENENDEZ, a/k/a ‘Nadine Arslanian,’ and three New Jersey businessmen, WAEL HANA, a/k/a ‘Will Hana,’ JOSE URIBE, and FRED DAIBES, with participating in a years-long bribery scheme … in exchange for MENENDEZ’s agreement to use his official position to protect and enrich them and to benefit the Government of Egypt.” Menendez said he believed the case would be “successfully resolved once <a href="https://rollcall.com/?p=727870">all of the facts are presented</a>,” but he stepped down temporarily as chairman of the Senate’s influential Committee on Foreign Relations.</em> </p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, interviewed longtime Washington lawyer and Penn State Dickinson Law professor Stanley M. Brand, who has served <a href="https://pennstatelaw.psu.edu/faculty/brand">as general counsel for the House of Representatives</a> and is a prominent white-collar defense attorney, and asked him to explain the indictment – and the outlook for Menendez both legally and politically.</em></p>
<p><strong>What did you think when you first read this indictment?</strong></p>
<p>As an old pal once told me, “even a thin pancake has two sides.”</p>
<p>Reading the criminal indictment in a case for the first time often produces a startled reaction to the government’s case. But as my over 40 years of experience <a href="https://pennstatelaw.psu.edu/faculty/brand">defending public corruption cases and teaching criminal law</a> have taught me, there are usually issues presented by an indictment that can be challenged by the defense. </p>
<p>In addition, as judges routinely instruct juries in these cases, the indictment is not evidence and the jury may not rely on it to draw any conclusions. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit pointing at a poster board with various photos on it." src="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Damian Williams, U.S. attorney for the Southern District of New York, speaks during a news conference on Sept. 22, 2023, after announcing the Menendez indictment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/damian-williams-u-s-attorney-for-the-southern-district-of-news-photo/1695609428?adppopup=true">Alexi J. Rosenfeld/Getty Images</a></span>
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<p><strong>The average reader will look at the indictment and say, “These guys are toast.” But are there ways Menendez can defend himself?</strong></p>
<p>There are a number of complex issues presented by these charges that could be argued by the defense in court. </p>
<p>First, while the indictment charges a conspiracy to commit bribery, it does not charge the substantive crime of bribery itself. This may suggest that the government lacks what it believes is direct evidence of a quid pro quo – “this for that” – between Menendez and the alleged bribers. </p>
<p>There is evidence of conversations and texts that coyly and perhaps purposely avoid explicit acknowledgment of a corrupt agreement – for instance, “On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, ‘Thank you. Christmas in January.’” </p>
<p>The government will argue that this reflects acknowledgment of a connection between official action and delivery of cash to Sen. Menendez, even though it is a less-than-express statement of the connection. </p>
<p>Speaking in this kind of code may not fully absolve the defendants, but the government must prove the defendants’ intent to carry out a corrupt agreement beyond a reasonable doubt – and juries sometimes want to see more than innuendo before convicting.</p>
<p>The government has also charged <a href="https://www.law.cornell.edu/uscode/text/18/1346">a crime called</a> “<a href="https://sgp.fas.org/crs/misc/R45479.pdf">honest services fraud</a>” – essentially, a crime involving a public official putting their own financial interest above the public interest in their otherwise honest and faithful performance of their duties.</p>
<p>The alleged failure of Menendez to list the gifts, as required, on his Senate financial disclosure forms will be cited by prosecutors as evidence of “consciousness of guilt” – an attempt to conceal the transactions. </p>
<p>However, under <a href="https://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/">a recent Supreme Court case</a> involving former <a href="https://theconversation.com/state-prosecutors-and-voters-not-the-feds-can-hold-corrupt-officials-accountable-138385">Gov. Bob McDonnell of Virginia for similar crimes</a>, the definition of “<a href="https://theconversation.com/its-getting-harder-to-prosecute-politicians-for-corruption-91609">official acts</a>” under the bribery statute has been narrowly defined to mean only formal decisions or proceedings. That definition does not include less-formal actions like those performed by Menendez, such as meetings with Egyptian military officials. </p>
<p>The Supreme Court rejected an interpretation of official acts that included arranging meetings with state officials and hosting events at the governor’s mansion, or promoting a private businessman’s products at such events. </p>
<p>When it comes time for the judge to instruct the jury at the end of the trial, Menendez may well be able to argue that much of what he did in fact did not constitute “official acts” and therefore are not illegal under the bribery statute. </p>
<p><strong>This case involves alleged favors done for a foreign country in exchange for money. Does that change this case from simple bribery to something more serious?</strong></p>
<p>The issue of foreign military sales to Egypt may also present a constitutional obstacle to the government. </p>
<p>The indictment specifically cites Menendez’s role as <a href="https://www.politico.com/news/2023/09/22/menendez-steps-down-foreign-relations-committee-00117622">chairman of the Senate Foreign Relations Committee</a> and actions he took in that role in releasing holds on certain military sales to Egypt and letters to his colleagues on that issue. The Constitution’s <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1">speech or debate clause</a> <a href="https://fas.org/sgp/crs/misc/R45043.pdf">protects members from</a> <a href="https://theconversation.com/doj-drops-investigation-into-three-senators-for-insider-trading-burr-probe-continues-134875">liability or questioning</a> when undertaking actions within the “legitimate legislative sphere” – which undoubtedly includes these functions. </p>
<p>While this will not likely be a defense to all the allegations, it could require paring the allegations related to this conduct. That would whittle away at a pillar of the government’s attempt to show Menendez had committed abuse of office. </p>
<p>In fact, when the government has charged members of Congress with various forms of corruption, <a href="https://theconversation.com/state-prosecutors-and-voters-not-the-feds-can-hold-corrupt-officials-accountable-138385">courts have rejected</a> any reference to their membership on congressional committees as evidence against them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits, standing in front of a fire engine." src="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=435&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=435&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=435&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=547&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=547&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=547&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New Jersey Gov. Phil Murphy, left, seen here in 2018 with Robert Menendez and fellow New Jersey Democratic Sen. Cory Booker, has called on Menendez to resign.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SuperstormSandyRebuildingAid/b3ee03a1ac9644d8add820dee6f3a57d/photo?Query=Phil%20Murphy%20Robert%20Menendez&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Wayne Parry</a></span>
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<p><strong>How likely is Menendez’s ouster from the Senate?</strong></p>
<p>Generally, neither the House nor Senate <a href="https://www.senate.gov/about/powers-procedures/expulsion.htm">will move to expel</a> <a href="https://www.everycrsreport.com/reports/RL33229.html">an indicted member before conviction</a>. </p>
<p>There have been rare exceptions, such as when <a href="https://www.nydailynews.com/2001/11/20/ex-sen-harrison-williams-81/">Sen. Harrison “Pete” Williams was indicted</a> in the FBI Abscam sting operation from the late 1970s and early 1980s <a href="https://www.fbi.gov/history/famous-cases/abscam">against members of Congress</a>. Williams resigned in 1982 <a href="https://www.washingtonpost.com/archive/politics/1982/03/12/williams-facing-expulsion-resigns-from-us-senate/714785a8-a310-47cd-8584-959f4549fd2c/">shortly before an expected expulsion</a> vote. With current <a href="https://about.bgov.com/brief/balance-of-power-a-partisan-convergence-in-the-senate/">Democratic control of the Senate</a> by a margin of just one seat, Menendez’s ouster seems unlikely even though the Democratic governor of New Jersey would assuredly appoint a Democrat to fill the vacancy.</p>
<p><strong>‘In the history of the United States Congress, it is doubtful there has ever been a corruption allegation of this depth and seriousness,’ <a href="https://www.nytimes.com/2023/09/23/nyregion/robert-menendez-political-future.html?searchResultPosition=1">former New Jersey Sen. Robert Torricelli said</a>. True?</strong></p>
<p>That seems hyperbolic. The Menendez case is just the latest in a long line of corruption cases involving members of Congress. </p>
<p>In <a href="https://www.fbi.gov/history/famous-cases/abscam">the Abscam case</a>, seven members of the House and one Senator were all convicted in a bribery scheme. That scheme involved undercover FBI agents <a href="https://www.fbi.gov/history/famous-cases/abscam">dressed up as wealthy Arabs</a> offering cash to Congress members in return for a variety of political favors. </p>
<p>In the <a href="https://ethics.house.gov/committee-reports/korean-influence-investigation">Korean Influence Investigation in 1978</a> – when I served as House counsel – <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal78-1237310">the House</a> and <a href="https://www.nytimes.com/1979/08/17/archives/investigation-into-influencebuying-by-korean-figure-comes-to-an-end.html">Department of Justice conducted an extensive investigation</a> of influence peddling by Tongsun Park, a South Korean national, in which questionnaires were sent to every member of the House relating to acceptance of gifts from Park. </p>
<p>Going all the way back to 1872, there was <a href="https://www.britannica.com/money/topic/Credit-Mobilier-Scandal">the Credit Mobilier scandal</a> that involved <a href="https://www.americanheritage.com/ultimate-congressional-scandal">prominent members of the House and Vice President Schuyler Colfax</a> in a scheme to reward these government officials with shares in the transcontinental railroad company in exchange for their support of funding for the project.</p><img src="https://counter.theconversation.com/content/214225/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The indictment of Sen. Bob Menendez is full of lurid details – hundreds of thousands of dollars in cash stuffed into clothes among them. Will they tank Menendez’s career?Stanley M. Brand, Distinguished Fellow in Law and Government, Dickinson Law, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2117132023-08-23T12:22:14Z2023-08-23T12:22:14ZTrump’s classified-documents indictment does more than allege crimes − it tells a compelling story<figure><img src="https://images.theconversation.com/files/543983/original/file-20230822-8562-thzo0f.jpeg?ixlib=rb-1.1.0&rect=37%2C0%2C8395%2C5613&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The indictment of Donald Trump and an aide was 'laced with rhetorical and narrative techniques.'</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-pages-are-viewed-from-the-news-photo/1258567549?adppopup=true">Photo Illustration by Drew Angerer/Getty Images</a></span></figcaption></figure><p>When special counsel Jack Smith announced <a href="https://www.pbs.org/newshour/politics/read-the-full-trump-indictment-on-mishandling-of-classified-documents">the charges he was bringing against former President Donald Trump</a> for retaining government documents, he did something unusual: He invited the public to <a href="https://www.c-span.org/video/?528657-1/special-counsel-jack-smith-statement-indictment-donald-trump">read the formal legal document, known as an indictment, detailing the allegations</a>. </p>
<p>And many did – concluding not only that the indictment was <a href="https://www.wbur.org/cognoscenti/2023/06/13/trump-documents-indictment-florida-jane-rosenzweig">well-written</a> but <a href="https://www.newyorker.com/news/letter-from-bidens-washington/the-trump-indictment-speaks-for-itself">engaging</a>.</p>
<p>I <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=274">study the ethics</a> of using narrative and rhetoric in legal persuasion. I am also a lawyer. I know that nothing required Smith and his team at the Department of Justice to write this way. Although legal scholars have <a href="https://scholarship.law.upenn.edu/faculty_scholarship/2177/">called for a more stringent standard</a>, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_7">the law requires only</a> that a federal indictment include a “plain, concise, and definite” outline of the “essential facts” of the case – just enough to help the defense attorney understand what the client faces. Prosecutors could have cleared this hurdle by writing a technocratic document intelligible only to other criminal law insiders.</p>
<p>Instead, they wrote what in legal circles is called a “speaking” indictment. This indictment told a story. And not just any story – one laced with rhetorical and narrative techniques to not just help the public understand the case, but more, to persuade readers that the prosecution is justified.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/pRG7GyERubQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">‘I invite everyone to read it in full,’ said special counsel Jack Smith of the indictment against Trump.</span></figcaption>
</figure>
<h2>Show, don’t tell</h2>
<p>Here are some examples of how the indictment tells a story aimed at persuading readers:</p>
<p><strong>The storage boxes:</strong> Trump’s now famous boxes are introduced by, first, the use of selective detail to paint a sentimental scrapbooking scene: We imagine Trump gathering what are described as “newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes.” Yet among this image of keepsakes, notes the next paragraph, were documents about “defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; [and] potential vulnerabilities of the United States and its allies to military attack.”</p>
<p><strong>Mar-a-Lago:</strong> These boxes didn’t remain at the White House; after Trump’s presidency ended, he took them to Mar-a-Lago. Prosecutors could have just referred to Trump’s “Florida residence” or listed a street address. But doing so might not only be boring but also leave readers with their own stock sense of what a “residence” is. </p>
<p>So they brought Mar-a-Lago to life, describing it as an “active social club” with “more than 25 guest rooms, two ballrooms, a spa, [and] a gift store” that, in the relevant period, hosted “150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.” It was into this Gatsbyesque scene that Trump brought his boxes.</p>
<p>True, Mar-a-Lago does have a “storage room” where many boxes were put. But here, too, indictment authors counter readers’ image of what that might mean. This isn’t a room in a quiet basement corner, but rather one in a hallway with “multiple outside entrances,” near high-traffic areas like a “liquor supply closet” and “linen room.” In a moment of almost Shakespearean comedy, the indictment shows Trump employees in this setting chancing upon confidential documents spilled out on the floor. One texts, “I opened the door and found this…” to which the other replies, “Oh no oh no.”</p>
<p><strong>The photos</strong>: Readers are not merely told that Trump stored highly sensitive intelligence materials at less-than-secure locations throughout Mar-a-Lago, they are shown <a href="https://www.pbs.org/newshour/politics/photos-from-trump-indictment-show-boxes-of-classified-documents-stored-in-mar-a-lago-shower-ballroom">photos of boxes</a> on a stage and in a bathroom. </p>
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<a href="https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Boxes piled on a stage in a fancy room." src="https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=454&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=454&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=454&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=571&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=571&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543762/original/file-20230821-23-4fy72z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=571&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Boxes at former U.S. President Donald Trump’s Mar-a-Lago estate in Palm Beach, Fla., in a photo included by the Justice Department in its indictment of Trump for hoarding government documents.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-photo-provided-by-the-u-s-department-of-news-photo/1258567092">U.S. Department of Justice via Getty Images</a></span>
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<a href="https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Boxes stacked in a bathroom." src="https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=530&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=530&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=530&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=666&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=666&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543764/original/file-20230821-19-ngzw9c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=666&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In this handout photo provided by the Justice Department, stacks of boxes are stored in a bathroom and shower at former U.S. President Donald Trump’s Mar-a-Lago estate in Palm Beach, Fla.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-photo-provided-by-the-u-s-department-of-news-photo/1258566797">Photo by U.S. Department of Justice via Getty Images</a></span>
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<p>These images not only keep readers engaged by breaking up the text but also reinforce the Department of Justice’s written allegations. And because viewers <a href="https://psycnet.apa.org/record/2004-12251-001">assume images to be true without reflection</a>, including this photographic evidence as visual allegations is especially effective. </p>
<p><strong>Plot inferences</strong>: As with any nonfiction story, the indictment has gaps. Readers know that phone calls occurred but not what was said. Readers know that actions took place one after another but not that the first caused the second. But through careful arrangement, the authors prime readers to fill in these gaps. </p>
<p>Using Trump’s own words, the indictment encourages readers to imagine him, to hear him, thinking out loud: “I don’t want anybody looking through my boxes … wouldn’t it be better if we just told them we don’t have anything here? … isn’t it better if there are no documents?” Then, starting a page later, readers twice see Trump speak to an employee for less than half a minute. They don’t know what’s said, but in both cases the next sentence after each phone call shows that employee moving boxes in, and then out, of the storage room. </p>
<p>Readers could infer what’s going on: Trump ordered that the boxes be moved and did so to conceal their contents. Without even realizing it, readers complete the story, giving content to the phone calls and meaning to the actions that followed them.</p>
<p>Throughout the indictment, writing techniques such as these <a href="https://www.alwd.org/index.php?option=com_attachments&task=download&id=290">transport readers through a story portal</a> so that they see Mar-a-Lago, hear Trump barking orders and feel his motivations; the case’s disparate facts cohere into a vivid, engaging story.</p>
<h2>‘It’s only one side’</h2>
<p>A bare-bones, legalistic indictment would do none of these things. Nonexpert readers would gloss over it. The public would be left with just Trump’s claims about what the case was about. In contrast, Smith’s approach helps the public understand this historic prosecution.</p>
<p>So maybe more prosecutors should write this way. </p>
<p>But not every defendant has Trump’s power or influence. Not every defendant can broadcast a story for an indictment to then counter. Instead, an indictment full of persuasive storytelling techniques might frame the public’s first, and sometimes only, impressions. </p>
<p>Unlike in a Supreme Court case, where both sides get to share their story of what happened and should happen next, at the indictment stage the prosecutor is the only one speaking. If such a case settles before trial through a plea agreement, or if after trial the case isn’t appealed, then the defendant may never have a chance to present a public, written story.</p>
<p>Prosecutors wield incredible power. This includes the power to persuade through storytelling. While admiring the writing of Smith and his team here, readers should also be aware: It’s only one side of the story.</p><img src="https://counter.theconversation.com/content/211713/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek H. Kiernan-Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Department of Justice prosecutors could have composed a technocratic document intelligible only to other criminal law insiders when indicting Donald Trump in the documents case. They did much more.Derek H. Kiernan-Johnson, Teaching Professor of Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2116492023-08-16T17:48:11Z2023-08-16T17:48:11ZWhere will Trump go on trial first? How federal and state prosecutors and judges work out conflicts<figure><img src="https://images.theconversation.com/files/542856/original/file-20230815-29-t4edqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County District Attorney Fani Willis holds a press conference after the grand jury voted to indict former President Donald Trump on Aug. 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-district-attorney-fani-willis-holds-a-press-news-photo/1600218311?adppopup=true">Christian Monterrosa/AFP via Getty Images </a></span></figcaption></figure><p>If a person is charged by federal and state prosecutors – or prosecutors in different states – at the same time, which case goes first? </p>
<p>A county grand jury in Atlanta indicted former President Donald Trump and 18 associates on Aug. 14, 2023, <a href="https://www.nytimes.com/interactive/2023/08/15/us/politics/trump-georgia-indictment-annotated.html">on a collective 41 felony counts</a>, including racketeering and forgery. The charges are linked to Trump’s alleged criminal conspiracy <a href="https://www.theguardian.com/us-news/2023/aug/14/georgia-trump-2020-fulton-county-case-explained">to overturn</a> the 2020 election results.</p>
<p>The latest, sweeping state charges come on top of other mounting legal trouble Trump is facing at the state and federal levels.</p>
<p>Manhattan District Attorney Alvin Bragg first <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">charged Trump</a> in April 2023 with 34 felony counts of falsifying business records. </p>
<p>Then, in June 2023, the Justice Department indicted Trump on multiple criminal charges related to <a href="https://theconversation.com/trump-indictment-unsealed-a-criminal-law-scholar-explains-what-the-charges-mean-and-what-prosecutors-will-now-need-to-prove-207469">withholding classified government documents</a>. One month later, the Justice Department indicted Trump again on <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf">unrelated felony charges</a> regarding his alleged attempts to overturn the 2020 presidential election results.</p>
<p>Trump’s first trial, related to the New York business documents case, is scheduled to begin in March 2024. His federal classified documents trial is <a href="https://www.nytimes.com/article/trump-indictment-trial-dates-timeline.html">slated for May 2024</a>. Fulton County District Attorney Fani Willis proposed to the court in a motion filed on Aug. 16, 2023, that the Georgia trial <a href="https://www.fultonclerk.org/DocumentCenter/View/2092/MOTION-08-16-2023-151715-39070073-1C86D04A-9755-4D11-B5B2-0C36FAC21C70">begin on March 5, 2024</a> –- a formal date has not yet been set. </p>
<p>Who gets priority?</p>
<p>I am a <a href="https://scholar.google.com/citations?user=xANL5ZkAAAAJ&hl=en">scholar of criminal law.</a> It’s important to recognize that criminal law provides no clear answer on how to settle that question. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A close up of a legal document is seen against a woman's orange dress." src="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County Superior Court Judge Robert McBurney receives letters of indictment for former President Donald Trump on Aug. 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1600397506?adppopup=true">Megan Varner/Getty Images</a></span>
</figcaption>
</figure>
<h2>No law dictating a path ahead</h2>
<p>Nothing in the U.S. Constitution or federal law dictates that federal criminal cases get priority over state cases, or that prosecutions proceed in the order in which indictments are issued. </p>
<p>The solution ordinarily is that the various prosecutors will negotiate and decide among themselves which case should proceed first. </p>
<p>Often, the one that involves the most serious charges gets priority, although the availability of key witnesses or evidence could play a role.
But once one court has set a trial date, courts in other jurisdictions are likely to schedule around that date. </p>
<p>There are a few cases to look to as reference for state charges competing with federal ones. </p>
<figure class="align-left ">
<img alt="A white man with a beard looks very serious." src="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Special Counsel Jack Smith has filed a seven-count indictment against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/prosecutor-jack-smith-of-the-us-waits-for-the-start-of-the-news-photo/1229563865?adppopup=true">Peter Dejong /AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>After <a href="https://apnews.com/article/ohio-us-news-ap-top-news-crime-charlottesville-2e61587a0b9c4849b4aec1ec3695ef22">neo-Nazi James Fields drove his car</a> into a group of protesters at the Unite the Right rally in Charlottesville, Virginia, in 2017, killing one person and injuring others, he was charged with crimes in both federal and state courts. </p>
<p>The state homicide trial went first. Then, <a href="https://www.justice.gov/opa/pr/ohio-man-pleads-guilty-29-federal-hate-crimes-august-2017-car-attack-rally-charlottesville">Fields pleaded guilty</a> to federal hate crime charges after the state conviction and <a href="https://www.npr.org/2019/07/15/741756615/virginia-court-sentences-neo-nazi-james-fields-jr-to-life-in-prison">received two life sentences</a> for his crime from both the state and federal charges.</p>
<p>By contrast, <a href="https://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/index.html">“D.C. sniper” John Allen Muhammad</a> was finally apprehended at a highway rest stop in Maryland in 2002, after a deadly series of sniper shootings in Maryland, Virginia and the District of Columbia that killed 10 people and injured three. </p>
<p>Maryland police <a href="https://www.washingtonpost.com/history/2022/10/01/timeline-dc-sniper-attacks/">arrested Muhammad</a>. Then, <a href="https://abcnews.go.com/US/story?id=91093&page=1">federal officials were the first</a> to file charges. But Muhammad was first put on trial and convicted of murder <a href="https://mdcourts.gov/data/opinions/coa/2022/29a21.pdf">in Virginia</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a Make America Great Again red hat and a white shirt and points towards the camera." src="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump acknowledges the crowd as he attends a golf tournament in Bedminster, N.J., on Aug. 13, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-points-at-the-crowd-as-he-news-photo/1600166011?adppopup=true">Timothy A. Clary/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s circumstances</h2>
<p>In Trump’s case, all of his federal charges are likely to carry longer potential sentences than the state offenses. That said, I think that any actual sentence would surely be much shorter than the potential maximum penalty. This is typical, as per federal sentencing guidelines for any defendant with no previous criminal record. </p>
<p>It’s hard to reliably speculate on whether a federal sentence would be longer than Georgia’s five-year mandatory minimum sentence for a RICO conviction – although Georgia prisoners, unlike federal inmates, are eligible for parole. </p>
<p>The felonies he is facing in New York are white-collar crimes and may <a href="https://www.forbes.com/sites/alisondurkee/2023/04/05/will-trump-go-to-prison-counts-against-him-could-result-in-136-year-sentence-but-its-highly-unlikely/">not result in any prison time</a>, legal experts have said.</p>
<p>But the Georgia prosecution alleges much more serious charges. If Trump were convicted of most or all of them, avoiding a prison sentence would be an unprecedented development.</p>
<p>Of course, much about Trump’s case is unique. Never has a former president faced federal or state prosecution. That fact alone probably makes priority for the federal prosecution more likely. </p>
<p>An active presidential candidate has faced criminal charges in the past, though. </p>
<p>Socialist Party <a href="https://www.smithsonianmag.com/history/fiery-socialist-challenged-nations-role-wwi-180969386/">nominee Eugene Debs</a> was <a href="https://www.oyez.org/cases/1900-1940/249us211">prosecuted and convicted under the Espionage Act</a> for his opposition to World War I in 1918. He <a href="https://theconversation.com/the-presidential-campaign-of-convict-9653-203027">campaigned from prison</a> for the 1920 election, before <a href="https://www.loc.gov/rr/program/bib/elections/election1920.html">losing to Republican Warren G. Harding</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unseals a search warrant that showed the FBI was investigating former President Donald Trump for possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<p>Federal authorities could assert priority over state officials by taking custody of the defendant. But this has not yet happened, as judges determined Trump was not a <a href="https://www.cnn.com/politics/live-news/donald-trump-indictment-court-appearance-06-13-23/h_a1a9eac55c1638585e314ea458d23729">flight risk</a> following his brief arraignments at Washington, D.C., courthouses in June and July. States cannot arrest suspects who are outside the state’s borders, but federal law enforcement officers <a href="https://www.fbi.gov/about/faqs">can arrest suspects anywhere</a> in the country. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/do-federal-or-state-prosecutors-get-to-go-first-in-trying-trump-a-law-professor-untangles-the-conflict-207402">article originally published on June 8, 2023</a>. This version was also updated to indicate it was a county grand jury in Atlanta, not a federal one.</em></p><img src="https://counter.theconversation.com/content/211649/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darryl K. Brown does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump has trial dates set for three of his four criminal cases. But generally, state and federal prosecutors will coordinate to make sure that their dates don’t overlap.Darryl K. Brown, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2103632023-08-03T12:23:10Z2023-08-03T12:23:10ZTrump may try to delay his first federal trial – it’s a common legal strategy to fend off a criminal conviction<figure><img src="https://images.theconversation.com/files/540477/original/file-20230801-22-j7rrdl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks in Bedminster, N.J., in June 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-at-the-trump-news-photo/1498281109?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p>Former <a href="https://www.cnn.com/2023/07/21/politics/trump-trial-date/index.html">President Donald Trump’s trial</a> for allegedly mishandling classified documents will begin on May 20, 2024. </p>
<p>At least that’s what Federal District Judge Aileen Cannon announced in mid-July 2023. </p>
<p>Trump’s <a href="https://www.cnbc.com/2023/07/18/trump-criminal-case-judge-hears-bid-to-delay-trial.html">legal team unsuccessfully pushed</a> Cannon to delay his trial until after the election. </p>
<p>Federal prosecutors, meanwhile, wanted the trial to begin <a href="https://www.politico.com/news/2023/07/21/judge-sets-trump-classified-documents-trial-for-next-may-00107566">as early as December 2023</a>. </p>
<p>Cannon split the difference. The date she set falls later than prosecutors wanted, and earlier than Trump wanted.</p>
<p>Trump is now also <a href="https://theconversation.com/the-most-serious-trump-indictment-yet-a-criminal-law-scholar-explains-the-charges-of-using-dishonesty-fraud-and-deceit-to-cling-to-power-210600">facing additional federal charges</a> for his attempts to overturn the 2020 presidential election. He is expected to be arraigned on Aug. 3, 2023, but it is not yet clear when his trial will begin. </p>
<p>Still, this May 2024 start date for his classified documents case should be entered on calendars only with a light pencil. As <a href="https://scholar.google.com/citations?user=X8tNfOsAAAAJ&hl=en">a legal ethics scholar and expert</a> on criminal trials, I have often observed that delaying a trial is a defense strategy, especially when the defense believes that the delay may <a href="https://www.thedailybeast.com/trumps-trial-delay-strategy-is-criminal-defense-101">weaken the prosecution’s case</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of men in suits walk down steps, flanked by people in black police uniforms." src="https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540472/original/file-20230801-10044-aub4o2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Attorneys for former President Donald Trump, including Todd Blanche, center, leave the Alto Lee Adams Sr. U.S. Courthouse on July 18, 2023, in Fort Pierce, Fla.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorneys-for-former-president-donald-trump-todd-blanche-news-photo/1554099067?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Delay can be good for defendants</h2>
<p>In criminal cases in which the defendant is not in jail awaiting trial, there is a common belief that delay is good for defendants. Witnesses’ memories will not be fresh, and some witnesses may even disappear. The conventional wisdom among defense lawyers is that <a href="https://www.nytimes.com/2013/04/15/nyregion/justice-denied-courts-in-slow-motion-aided-by-defense.html">delays lead to acquittals</a>. </p>
<p>Trump’s defense team could try to delay the trial by filing various pretrial motions – meaning questions or requests to the court. </p>
<p>These legal requests could focus on what kind of evidence to admit or exclude at trial, or which witnesses should testify. For example, the defense team is likely to request that the Trump lawyers involved in the Mar-a-Lago search be excluded, claiming their communications with Trump are protected by attorney-client privilege. Whether the judge agrees to these requests or not doesn’t matter – at least, not at first. Once such a request is made, the other side usually has 21 days to reply, and often the judge will set a hearing on the request, which could cause a delay. </p>
<p>If there is a hearing on the request, the judge then may take days, and sometimes weeks, to issue a ruling on the request.</p>
<p>In Trump’s case, delaying the trial until after the election could mean that if Trump wins the presidency, he could have the Justice Department drop the case or he could try to pardon himself.</p>
<p>As Sean Walsh, who served in the White House press office in the Reagan and George H.W. Bush administrations, explained, if Trump is elected president, that will be “<a href="https://thehill.com/homenews/campaign/4110644-trump-indictments-leave-him-fighting-for-higher-office-and-maybe-his-freedom/">his get out of jail free card</a>” if he is convicted in federal cases. But that would not apply to state prosecutions or convictions, which the president cannot control. </p>
<p>If voters pick another Republican as the presidential nominee and that person wins the general election, Trump could also ask that president to pardon him. </p>
<p>Indeed, one Republican candidate, Vivek Ramaswamy, is urging all of the GOP 2024 White House contenders to <a href="https://thehill.com/homenews/campaign/4047479-ramaswamy-pushes-2024-rivals-to-commit-to-pardoning-trump-over-federal-indictment/">commit to pardoning Trump</a>. </p>
<h2>Different ways to push the date</h2>
<p>Before the May 2024 trial date, Trump’s defense lawyers <a href="https://www.politico.com/news/2023/07/11/trump-classified-documents-trial-date-2024-00105565">could argue that they need more time</a> to adequately prepare for trial. They could use this justification to push the start date back. </p>
<p>They could argue that, without more time, Trump will not get a fair trial because they will not be able to represent him effectively.</p>
<p>Cannon set May 14, 2024, <a href="https://www.cnn.com/2023/07/21/politics/trump-trial-date/index.html#:%7E:text=A%20federal%20judge%20ordered%20Friday,be%20held%20on%20May%2014.">as the last hearing</a> before the trial, so Trump’s lawyers could conceivably wait until then to request a delay. </p>
<p>That motion alone would potentially delay the trial for weeks, if not months, if Cannon granted it. If Cannon denied the motion, an appeal to a higher court would also take weeks or months.</p>
<p>Additionally, the defense might find out new information during the <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/">discovery phase</a>, which involves the government’s turning over evidence and a list of witnesses. That would lead Trump’s legal team to try to exclude the new evidence or prosecution witnesses from the trial. </p>
<p>For example, the Justice Department has relied on evidence in some communications between Trump and one of his lawyers, E. Evan Corcoran, in its investigation. Trump’s lawyers are almost certain to ask that Cannon keep that evidence out of the trial by asking a different trial judge in Florida to rule that way. If Cannon allowed this request, the government would be <a href="https://www.nytimes.com/2023/06/12/us/judge-aileen-cannon-trump-trial.html">almost certain to appeal</a>.</p>
<p>That, too, would take time to work out in the court system as the judge considered the request. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large white building is seen with palm trees and streets covered with puddles." src="https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540471/original/file-20230801-15-16gsh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump’s trial over mishandling classified documents is scheduled to begin at a federal Florida courthouse in May 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-alto-lee-adams-sr-united-states-courthouse-where-u-s-news-photo/1500102436?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Too early for action</h2>
<p>At this point, before there has been an exchange of discovery and witness lists, it is too early for Trump’s defense to appeal the May 2024 trial date. It is also too early from a strategic point of view.</p>
<p>Waiting until later in the pretrial process gives Trump additional opportunities to ask Cannon for more delays based on what his team learns through the discovery process. Even if Cannon does not grant an additional Trump request for delay, the defense could always appeal any such denial.</p>
<p>For these and potentially other possible reasons to delay the trial, Cannon’s setting the trial for May 20, 2024, is more tentative than it may seem. Trump’s defense lawyers will have other chances to seek additional delays. And Cannon is the primary – if not the only – person who will decide those requests. </p>
<p>Until her decision is appealed.</p><img src="https://counter.theconversation.com/content/210363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Delaying a trial by filing various requests and questions to the court might mean that witness memories are not as fresh, among other potential benefits for criminal defendants.Peter A. Joy, Professor of law, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2104032023-08-01T22:18:06Z2023-08-01T22:18:06ZTrump indicted in Jan. 6 case – but his three upcoming trials may not keep him off the campaign trail<figure><img src="https://images.theconversation.com/files/539607/original/file-20230726-19-fgr8xo.jpeg?ixlib=rb-1.1.0&rect=11%2C5%2C3982%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former U.S. President Donald Trump on June 13, 2023, after being arraigned in Miami. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-visits-the-versailles-news-photo/1258668339?adppopup=true"> Stephanie Keith/Getty Images</a></span></figcaption></figure><p>Most commentators who have discussed Donald Trump’s pending criminal trials in New York, Florida and – with the late-day revelation on Aug. 1, 2023, that he has been <a href="https://www.nytimes.com/live/2023/08/01/us/trump-indictment-jan-6">indicted by a Washington, D.C., grand jury</a> – in the nation’s capital, have concluded that those trials would require his presence. And that would compromise his ability to campaign vigorously for the Republican nomination and the presidency. </p>
<p>The U.S. Constitution protects <a href="https://supreme.justia.com/cases/federal/us/470/522/">defendants’ rights</a> to be present at their criminal trials, prohibiting the government from holding trials against a defendant in the defendant’s absence. This rule differentiates the United States from other democracies that allow criminal trials to be held in the absence of the accused. For example, <a href="https://www.npr.org/sections/thetwo-way/2013/08/26/215756246/amanda-knox-wont-attend-new-italian-trial-lawyer-says">Italy tried and convicted Amanda Knox without her presence in Italy</a> for the murder of her roommate Meredith Kercher. The conviction was later reversed.</p>
<p>And in federal prosecutions, a <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">federal rule of criminal procedure</a> appears to require the defendant to attend the entire trial. But that still doesn’t mean a defendant will turn up in court day after day. </p>
<p>In Trump’s case, it raises the question: Could the former president boycott his trials?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit talks at a lectern in the front of a meeting room, with an American flag behind him." src="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Manhattan District Attorney Alvin Bragg at an April 4, 2023, press conference following the arraignment of former U.S. President Donald Trump on state charges.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/manhattan-district-attorney-alvin-bragg-speaks-during-a-news-photo/1250778290?adppopup=true">Kena Betancur/Getty Images</a></span>
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</figure>
<h2>Federal prosecutions</h2>
<p>According to <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">Rule 43 of the Federal Rules of Criminal Procedure</a>, the defendant “must be present” at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at sentencing. This rule embodies the defendant’s constitutional right to be present at trial. And under U.S. <a href="https://supreme.justia.com/cases/federal/us/506/255/">Supreme Court precedents that interpret Rule 43</a>, a defendant absolutely must be present at the commencement of a federal criminal trial.</p>
<p>But after a trial begins, many courts have recognized the defendant’s right to voluntarily “be absent” from the rest of the trial by waiving their right to be present. At the very least, several courts have acknowledged that the trial judge has the discretion to permit the defendant’s absence. These decisions address the defendant’s knowing waiver of his constitutional right to be present at his trial. </p>
<p>In addition, they interpret an exception to federal Rule 43 <a href="https://www.federalrulesofcriminalprocedure.org/title-ix/rule-43-defendants-presence/">that allows defendants to waive their rights</a> to be present at a trial “when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial.” </p>
<p>At least one federal court <a href="https://casetext.com/case/united-states-v-sterling-10?__cf_chl_tk=9S3Qt_Ap17Qy49CSCp1KSLtG8qMTzHrD20dh8LxeTpI-1690483077-0-gaNycGzNDhA">has held</a> that a federal trial begins no later than the day of jury selection. </p>
<p>So as long as Trump knowingly waives his right to be present at his own criminal trial, the presiding judge may agree that his unique circumstances – running for the presidency – constitute sufficient grounds to acknowledge and approve a waiver.</p>
<h2>State prosecutions</h2>
<p>Similarly, where Trump faces state charges, in <a href="https://case-law.vlex.com/vid/people-v-epps-894221707">New York</a> and potentially in <a href="https://casetext.com/case/pennie-v-state">Georgia</a>, both states allow for a voluntary waiver by the defendant of their right to attend their criminal trial. The Georgia and New York state constitutions and both states’ laws protect a defendant’s right to be present at all stages of a criminal trial. They also allow for the defendant to waive this right, as long as the waiver is undertaken voluntarily. </p>
<p>That means Trump could not hold up a criminal trial by refusing to attend, since courts typically continue such trials in the public interest even in the voluntary absence of the defendant.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Five people sitting on one side of a table with papers on the table in front of them." src="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump with his attorneys inside the courtroom during his arraignment at the Manhattan Criminal Court on April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-appears-in-court-at-the-news-photo/1250772070?adppopup=true">Seth Wenig/POOL/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Potential damage</h2>
<p>Any time a defendant refuses to attend his own criminal trial, however, there may be consequences. </p>
<p>For example, the sentencing judge may interpret a defendant’s refusal to attend as an act of disrespect for the court. Or, in the case of a jury trial, jurors may be rankled by the defendant’s voluntary absence. </p>
<p>As <a href="https://search.asu.edu/profile/3033197">a scholar of constitutional law</a>, I have no doubt that Donald Trump’s lawyers will advise him to attend. But none of these factors may matter to the former president, who seems focused most intently on delegitimizing the prosecutions as <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">politically driven persecutions</a>. </p>
<p>Trump may not be able to sit through day after day of a criminal trial. Given <a href="https://www.axios.com/2017/12/15/report-nato-altering-meeting-to-fit-trump-attention-span-1513302313">what is known about his</a> short attention span, such an outcome seems highly unlikely. </p>
<p>Even if he is able to absent himself from one or more of his pending trials voluntarily, he could and likely will argue that he faces a Hobson’s choice: attend the trial and lose the presidency, or boycott the trial and lose his freedom. </p>
<p>Many of his supporters will reject either outcome.</p><img src="https://counter.theconversation.com/content/210403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump has been indicted for crimes in connection with his efforts to overturn the 2020 election. A legal scholar looks at the law to determine whether he can boycott his upcoming trials.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2100322023-07-18T20:08:23Z2023-07-18T20:08:23ZWhat is a target letter? 3 things to know about how the Justice Department notifies suspects, like Donald Trump, ahead of possible charges<figure><img src="https://images.theconversation.com/files/538094/original/file-20230718-33186-qoqowz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump appears in July 2023 at a re-election campaign event in Florida. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1534455414/photo/us-vote-politics-trump.jpg?s=612x612&w=gi&k=20&c=3ykyCSxAZ3nd52wzkgMq4ZX6RXfqJb5AxuAsVYyLZxc=">Giorgio Viera/AFP via Getty Images</a></span></figcaption></figure><p><em>Former President Donald Trump <a href="https://www.washingtonpost.com/politics/2023/07/18/trump-letter-response-j6/">posted on Truth Social</a> on July 18, 2023, that he had received <a href="https://www.npr.org/2023/07/18/1188280401/trump-jan-6-letter">a letter from the Department of Justice,</a> notifying him that that he was “a TARGET of the January 6th Grand Jury investigation.”</em></p>
<p><em>He also wrote that the letter said he has “a very short 4 days to report to the Grand Jury, which almost always means an Arrest and Indictment.”</em></p>
<p><em>It’s the second letter from the Justice Department that Trump has reportedly received in the last few months. The <a href="https://www.cnn.com/2023/06/07/politics/trump-justice-department-classified-documents/index.html">first preceded</a> the department <a href="https://theconversation.com/trump-charged-under-espionage-act-which-covers-a-lot-more-crimes-than-just-spying-207373">charging Trump in June 2023</a> with mishandling classified documents, obstructing justice and making false statements.</em></p>
<p><em>The Justice Department is investigating Trump for his alleged involvement in orchestrating the <a href="https://www.npr.org/2022/12/23/1145209559/jan-6-committee-final-report">Jan. 6, 2021, attack</a> on the U.S. Capitol building.</em> </p>
<p><em>Target letters are often used to be fair to someone who is likely to be charged with a crime. Criminal law scholar <a href="https://scholar.google.com/citations?user=DMWfDCgAAAAJ&hl=en">Gabriel J. Chin</a> explains three key things to know about these letters.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large photo of Donald Trump is shown on a projector screen, above a row of people seated at podium with American flags behind them." src="https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/538096/original/file-20230718-33186-2q15vf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An image of Donald Trump is displayed during a House Committee meeting investigating the Jan. 6, 2021, Capitol attack.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1245732247/photo/house-select-committee-to-investigate-the-january-6th-attack-on-the-u-s-capitol-holds-final.jpg?s=612x612&w=gi&k=20&c=-NC0LX0gGGlSwSNRq9Jz8XCigcifNBjwO0yKVb_1q6M=">Jim Lo Scalzo/Getty Images</a></span>
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<h2>1. Target letters are warnings</h2>
<p>The Department of Justice’s general practice is to warn people being investigated for complex crimes that they are about to be charged with crimes. This is done through an official correspondence known as a “<a href="https://www.justice.gov/archives/jm/criminal-resource-manual-160-sample-target-letter">target letter</a>.” </p>
<p>There are two types of target letters:</p>
<p>The first is a document issued by federal prosecutors to a person who has been <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.151">subpoenaed to testify</a> before a grand jury as a witness and who is likely to be charged with a crime related to that testimony. The second is issued when a person has not been subpoenaed as a witness but is <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.153">nevertheless likely to be indicted</a> by a grand jury. In such cases, <a href="https://www.justice.gov/usao/justice-101/charging">Justice Department policy</a> is to notify the person of an impending indictment.</p>
<p>It is not clear which type of letter Trump received, but it is reasonable to speculate that it is the latter. </p>
<p>The grand jury called by <a href="https://www.nytimes.com/2023/06/08/us/politics/jack-smith-special-counsel-trump-indictment.html">Special Prosecutor Jack Smith</a> is not known to have subpoenaed Trump in this investigation of the Capitol attack. The Justice Department is unlikely to have subpoenaed Trump to testify, given that he is unlikely to waive his privilege against self-incrimination. </p>
<p>Target letters also give the potential defendant an opportunity to decide how to respond. If the target does not have legal counsel, the letter gives them a strong indication that they should get a lawyer. Since target letters come before someone is charged with a crime, the person would not normally have the constitutional right to be appointed counsel at this time. </p>
<h2>2. Target letters can help the prosecution</h2>
<p>Target letters can serve the prosecution’s interests. They can help ensure that any testimony given to the grand jury will later be admissible or able to be used in court.</p>
<p>The Supreme Court has never expressly decided whether grand jury witnesses are entitled to <a href="https://www.law.cornell.edu/wex/miranda_warning">Miranda-like warnings</a>, meaning a person should be informed of their rights to remain silent or consult with an attorney before they speak or during their testimony. However, <a href="https://www.courtlistener.com/opinion/237373/united-states-v-patrick-j-scully/">since at least the 1950s</a>, lower courts have indicated that the better practice is to warn witnesses and targets that testifying before a grand jury creates legal risks.</p>
<p>Prosecutors want to avoid unnecessary litigation, as well as the appearance that they are possibly taking advantage of witnesses. So the Justice Department uses target letters as an opportunity to advise witnesses that they have the right to obtain counsel, to decline to answer incriminating questions and that any testimony may later be used against them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of people stand outside the U.S. Capitol building and hold signs that say Trump and American flags." src="https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/538107/original/file-20230718-26254-wf9glg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Rioters stand outside the U.S. Capitol following a rally with then-president Donald Trump on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1230454607/photo/trump-supporters-hold-stop-the-steal-rally-in-dc-amid-ratification-of-presidential-election.jpg?s=612x612&w=gi&k=20&c=jaXHq1TUzkPBnY3uCVlx1-27LprO_kr1dkvojbGUKkQ=">Samuel Corum/Getty Images</a></span>
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<h2>3. Target letters can be useful, but are not necessary</h2>
<p>The Supreme Court has held that the <a href="https://supreme.justia.com/cases/federal/us/431/181/">Constitution does not require</a> that an individual who is properly warned of their privilege against self-incrimination also be told that they are a target of the grand jury’s investigation. But Justice Department policy requires that target letters be issued in every case where a target is subpoenaed to testify before a grand jury. </p>
<p>The Justice Department has decided to give Trump this additional warning anyway. Advising an individual that they are a target might induce cooperation, and it promotes the appearance of fairness.</p><img src="https://counter.theconversation.com/content/210032/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabriel J. Chin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Justice Department issues target letters to people who are about to be charged with crimes, giving them a warning and a chance to get legal counsel.Gabriel J. Chin, Professor of criminal law, immigration and race and law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2074022023-06-09T02:18:55Z2023-06-09T02:18:55ZDo federal or state prosecutors get to go first in trying Trump? A law professor untangles the conflict<figure><img src="https://images.theconversation.com/files/531053/original/file-20230609-23-4oy7lo.jpg?ixlib=rb-1.1.0&rect=790%2C431%2C5200%2C3556&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks at a campaign event in New Hampshire on April 27, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-at-a-campaign-event-at-news-photo/1252522283?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p>A federal grand jury in Florida indicted former President Donald Trump on June 8, 2023, on multiple criminal charges related to classified documents he took from the White House to his home in Mar-a-Lago, Florida, <a href="https://www.nytimes.com/live/2023/06/08/us/trump-indictment-documents">according to multiple sources</a> cited in The New York Times and The Associated Press.</p>
<p><a href="https://truthsocial.com/@realDonaldTrump/posts/110511161240386878">Trump himself said</a> on his social media outlet, Truth Social, that he had been indicted.</p>
<p>The seven counts against Trump – the first president to face federal charges in U.S. history – include <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73">obstruction of justice</a>, false statements and <a href="https://www.law.cornell.edu/uscode/text/18/1924">willful retention of documents</a>, The New York Times reported. </p>
<p>Trump said he was <a href="https://www.businessinsider.com/trump-says-he-indicted-on-truth-social-2023-6">set to appear</a> in a <a href="https://www.miamiherald.com/news/local/article276225626.html">Miami federal courthouse</a> on June 9 at 3 p.m. </p>
<p>The Justice Department <a href="https://www.pbs.org/newshour/politics/donald-trump-says-hes-been-indicted-on-charges-of-mishandling-classified-documents">did not immediately comment</a> on the reported charges.</p>
<p>But the federal charges come on top of other legal trouble Trump is facing at the state level.</p>
<p>Manhattan District Attorney Alvin Bragg <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">charged Trump</a> in April 2023 with 34 felony counts of falsifying business records. </p>
<p>And in Georgia, the Fulton County district attorney is investigating <a href="https://www.vox.com/politics/2023/6/4/23748503/georgia-trump-investigation-rico">Trump’s alleged attempts</a> to overturn the results of the 2020 election. This, too, could result in criminal charges under Georgia law. </p>
<p>If a person is charged by federal and state prosecutors – or prosecutors in different states – at the same time, which case goes first? </p>
<p>Who gets priority?</p>
<p>I am a <a href="https://scholar.google.com/citations?user=xANL5ZkAAAAJ&hl=en">scholar of criminal law.</a> It’s important to recognize that criminal law provides no clear answer how to settle that question. </p>
<h2>No law dictating a path ahead</h2>
<p>Nothing in the U.S. Constitution or federal law dictates that, say, federal criminal cases get priority over state cases, or that prosecutions proceed in the order in which indictments are issued. </p>
<p>The solution ordinarily is that the various prosecutors will negotiate and decide among themselves which case should proceed first. Often, the one that involves the most serious charges gets priority, although the availability of key witnesses or evidence could play a role. </p>
<p>There are a few cases to look to as reference for state charges competing with federal ones. </p>
<figure class="align-left ">
<img alt="A white man with a beard looks very serious." src="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Special Counsel Jack Smith has filed a seven-count indictment against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/prosecutor-jack-smith-of-the-us-waits-for-the-start-of-the-news-photo/1229563865?adppopup=true">Peter Dejong /AFP via Getty Images</a></span>
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<p>After <a href="https://apnews.com/article/ohio-us-news-ap-top-news-crime-charlottesville-2e61587a0b9c4849b4aec1ec3695ef22">neo-Nazi James Fields drove his car</a> into a group of protesters at the Unite the Right Rally in Charlottesville, Virginia, in 2017, killing one person and injuring others, he was charged with crimes in both federal and state courts. </p>
<p>The state homicide trial went first. Then, <a href="https://www.justice.gov/opa/pr/ohio-man-pleads-guilty-29-federal-hate-crimes-august-2017-car-attack-rally-charlottesville">Fields pleaded guilty</a> to federal hate crime charges after the state conviction and <a href="https://www.npr.org/2019/07/15/741756615/virginia-court-sentences-neo-nazi-james-fields-jr-to-life-in-prison">received two life sentences</a> for his crime from both the state and federal charges.</p>
<p>By contrast, <a href="https://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/index.html">“D.C. Sniper” John Allen Muhammad</a> was finally apprehended at a highway rest stop in Maryland in 2002, after a deadly series of sniper shootings in Maryland, Virginia and the District of Columbia, which killed 10 people and injured three. </p>
<p>Maryland police <a href="https://www.washingtonpost.com/history/2022/10/01/timeline-dc-sniper-attacks/">arrested Muhammad</a>. Then, <a href="https://abcnews.go.com/US/story?id=91093&page=1">federal officials were the first</a> to file charges. But Muhammad was first put on trial and convicted of murder <a href="https://mdcourts.gov/data/opinions/coa/2022/29a21.pdf">in Virginia</a>.</p>
<h2>Trump’s circumstances</h2>
<p>In Trump’s case, his federal charges – which were not unsealed as of June 8 – are likely to carry longer potential sentences than the state offenses. </p>
<p>The felonies he is facing in New York are white-collar crimes and may <a href="https://www.forbes.com/sites/alisondurkee/2023/04/05/will-trump-go-to-prison-counts-against-him-could-result-in-136-year-sentence-but-its-highly-unlikely/">not result in any prison time</a>, legal experts have said.</p>
<p>Of course, much about Trump’s case is unique. Never has a former president faced federal or state prosecution. That fact alone probably makes priority for the federal prosecution more likely. </p>
<p>An active presidential candidate has faced criminal charges in the past, though. </p>
<p>Socialist Party <a href="https://www.smithsonianmag.com/history/fiery-socialist-challenged-nations-role-wwi-180969386/">nominee Eugene Debs</a> was <a href="https://www.oyez.org/cases/1900-1940/249us211">prosecuted and convicted under the Espionage Act</a> for his opposition to World War I in 1918. He <a href="https://theconversation.com/the-presidential-campaign-of-convict-9653-203027">campaigned from prison</a> for the 1920 election, before <a href="https://www.loc.gov/rr/program/bib/elections/election1920.html">losing to Republican Warren G. Harding</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A judge unsealed a search warrant that showed the FBI was investigating former president Donald Trump for possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
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<p>Federal authorities could assert priority over state officials by taking custody of the defendant. States cannot arrest suspects who are outside the state’s borders, but federal law enforcement officers <a href="https://www.fbi.gov/about/faqs">can arrest suspects anywhere</a> in the country. </p>
<p>It is exceedingly unlikely that federal prosecutors would ask a court to detain Trump in jail before trial. Rather, they are likely to allow him to be released on bail <a href="https://www.nytimes.com/2023/04/04/nyregion/trump-bail-reform.html">as the New York court did</a> in April. But their nationwide jurisdiction gives federal authorities an advantage over states in controlling the defendant, in terms of placing and enforcing bail conditions, for example, regardless of where he resides at the moment.</p><img src="https://counter.theconversation.com/content/207402/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darryl K. Brown does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If a person – in this case, the former president of the United States – is charged by federal and state prosecutors, or prosecutors in different states, at the same time, which case goes first?Darryl K. Brown, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2056452023-06-05T05:55:18Z2023-06-05T05:55:18ZKathleen Folbigg pardon shows Australia needs a dedicated body to investigate wrongful convictions<p>The New South Wales Attorney-General Michael Daley today announced Kathleen Folbigg <a href="https://www.abc.net.au/news/2023-06-05/kathleen-folbigg-attorney-general-provides-update/102440136">has been pardoned</a> after having served 20 years for the murder of three of her infant children and the manslaughter of a fourth child. She has already been released, and won’t serve the rest of her 30-year sentence.</p>
<p>Daley had seen the preliminary findings of a second judicial inquiry led by former NSW Chief Justice Thomas Bathurst, which found there was reasonable doubt as to Folbigg’s guilt for each of the offences.</p>
<p>At trial, the prosecution had relied on the statistical improbability of so many of her children dying accidentally. However, at the second inquiry, this reasoning was called into question by fresh scientific evidence pointing to possible medical causes of the deaths.</p>
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Read more:
<a href="https://theconversation.com/kathleen-folbiggs-children-likely-died-of-natural-causes-not-murder-heres-the-evidence-my-team-found-156487">Kathleen Folbigg's children likely died of natural causes, not murder. Here's the evidence my team found</a>
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<p>Her two daughters were found to have a <a href="https://theconversation.com/kathleen-folbiggs-children-likely-died-of-natural-causes-not-murder-heres-the-evidence-my-team-found-156487">mutation in the CALM2 gene</a>, which is associated with sudden infant death.</p>
<p>One of her sons may have had an underlying neurological condition such as <a href="https://theconversation.com/kathleen-folbiggs-children-likely-died-of-natural-causes-not-murder-heres-the-evidence-my-team-found-156487">epilepsy</a>, which may have caused his death.</p>
<p>In relation to the death of her other son, Bathurst said the new medical evidence regarding the other three deaths undermined some of the reasoning used in the case against her. He <a href="https://www.theguardian.com/australia-news/2023/jun/05/kathleen-folbigg-pardoned-after-20-years-in-jail-over-deaths-of-her-four-children">said</a> “the coincidence and tendency evidence which was central to the (2003) Crown case falls away”.</p>
<p>At trial, and in the first inquiry, the prosecution had argued Folbigg’s diary entries relating to the deaths of her children could be interpreted as admissions of guilt. But having been presented with <a href="https://www.smh.com.au/national/nsw/folbigg-diaries-do-not-contain-true-expressions-of-guilt-inquiry-told-20230222-p5cmgc.html">fresh psychological evidence</a>, Bathurst <a href="https://www.news.com.au/national/nsw-act/crime/kathleen-folbiggs-diaries-reveal-she-didnt-kill-her-children/news-story/32d1958dd4890377761f2e35cb3fbd5d">interpreted</a> the diary entries as “the writings of a grieving and possibly depressed mother, blaming herself for the death of each child”.</p>
<p>Whereas at trial Folbigg had been presented by the prosecution <a href="https://www.bbc.com/news/world-australia-56355695">as</a> “Australia’s worst female serial killer”, Bathurst <a href="https://www.theguardian.com/australia-news/2023/jun/05/kathleen-folbigg-pardoned-after-20-years-in-jail-over-deaths-of-her-four-children">indicated</a> he was “unable to accept […] the proposition that Ms Folbigg was anything but a caring mother for her children”.</p>
<p>The Folbigg case is a particularly tragic case, but it’s not unprecedented. The criminal justice system carries an inbuilt risk of wrongful conviction. Ad hoc commissions of inquiries like the Folbigg inquiry are inefficient and expensive. The system needs reform. </p>
<p>The Folbigg case is yet another demonstration that Australia needs a Criminal Cases Review Commission (CCRC) – a statutory body working at arm’s length to investigate claims of wrongful conviction.</p>
<p>A CCRC would have the powers and resources to investigate defendants’ claims to have been wrongfully convicted. Claims found to have substance can be referred back to the court of criminal appeal. Standing CCRCs have proven to bring a <a href="https://www.gov.uk/government/publications/tailored-review-of-the-criminal-cases-review-commission">cost-effective improvement</a> to the accuracy of criminal justice systems overseas. </p>
<p>Preferably, it would be a single federal body covering all jurisdictions, or failing that, one for each jurisdiction.</p>
<h2>Wrongful convictions</h2>
<p>Cases where miscarriages of justice are identified years later, such as Folbigg’s, do happen.</p>
<p>In the last decade, Jason Roberts in Victoria <a href="https://www.theguardian.com/australia-news/2022/jul/11/jason-roberts-found-not-guilty-of-the-murders-of-two-victoria-police-officers-in-1998">was acquitted</a> in a retrial after serving two decades in prison for the murder of two police officers. </p>
<p>Scott Austic in WA was <a href="https://www.abc.net.au/news/2022-04-04/how-evidence-tampering-put-scott-in-jail-for-a-murder/100631388">acquitted</a> in retrial after serving 12 years for the murder of his partner who was pregnant with his child.</p>
<p>David Eastman in the ACT was <a href="https://www.theguardian.com/australia-news/2019/oct/14/david-eastman-awarded-7m-for-19-years-of-wrongful-imprisonment">acquitted</a> in a retrial after serving 20 years for the murder of assistant police commissioner Colin Winchester.</p>
<p>Henry Keogh in SA was <a href="https://www.abc.net.au/news/2019-04-12/henry-keogh-welcomes-court-ruling-supporting-release-of-report/10999392">freed</a> following an exceptional second appeal having served 20 years for the murder of his fiancé.</p>
<p>In these cases, as in the Folbigg case, the subsequent proceedings considered fresh forensic evidence or highlighted flaws in the original proceedings or investigation.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/serial-podcasts-adnan-syed-has-murder-conviction-vacated-how-common-are-wrongful-convictions-190968">'Serial' podcast's Adnan Syed has murder conviction vacated. How common are wrongful convictions?</a>
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<h2>Systemic solution</h2>
<p>It’s a primary goal of the criminal justice system to avoid the searing injustice of a wrongful conviction. This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt.</p>
<p>But absolute certainty in guilt isn’t feasible and isn’t required. A risk of error is run and occasional errors should be expected. They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the “finality principle”. This means the jury verdict is ordinarily considered final, for the sake of efficiency and to provide the parties and society with closure. </p>
<p>Following an unsuccessful appeal, the finality principle bites still harder and it becomes significantly more difficult for the wrongly convicted defendant to achieve justice. The imprisoned defendant will face an almost insurmountable challenge in persuading the government (or, in some jurisdictions, court) to order an inquiry or an exceptional subsequent appeal. In order to achieve justice, defendants like Folbigg, Roberts, Keogh and Eastman require remarkable resilience, as well as supporters on the outside.</p>
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<strong>
Read more:
<a href="https://theconversation.com/why-is-it-so-hard-for-the-wrongfully-jailed-to-get-justice-84143">Why is it so hard for the wrongfully jailed to get justice?</a>
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<p>The criminal justice system needs to do more to address the statistical certainty of the occasional wrongful conviction. Overcoming this injustice shouldn’t demand superhuman reserves of fortitude, or the chance arrival of a champion.</p>
<p>The systemic risk of wrongful conviction demands a systemic solution.</p>
<p>Other developed nations have recognised that CCRCs are well-suited to this task, including England and Wales, Scotland, New Zealand, and Canada. Australia should follow in this path. </p>
<p>The extent of the change can be carefully calibrated through the design of the CCRC. The CCRC is a gatekeeper, and legislation can determine how widely the gate is opened.</p>
<p>The call for this key piece of criminal justice infrastructure isn’t new. The Australian Law Council <a href="https://www.lawcouncil.asn.au/resources/policies-and-guidelines/policy-statement-commonwealth-criminal-cases-review-commission">expressed support for a federal CCRC in 2012</a>. Commentators have called for an Australian CCRC <a href="http://classic.austlii.edu.au/au/journals/UNSWLawJl/2014/12.html">on many occasions</a>.</p>
<p>Last year former High Court Justice, Michael Kirby, <a href="https://www.sydneycriminallawyers.com.au/blog/an-australian-criminal-cases-review-commission-an-interview-with-former-high-court-justice-michael-kirby/?utm_source=mondaq&utm_medium=syndication&utm_term=Criminal-Law&utm_content=articleoriginal&utm_campaign=article">reiterated his view</a> that “such a commission is needed”. And the <a href="https://www.sydney.edu.au/law/our-research/research-centres-and-institutes/sydney-institute-of-criminology.html">Sydney Institute of Criminology</a> is currently calling on governments to take steps to establish an Australian CCRC. </p>
<p>Cases like Folbigg’s demonstrate that this reform is urgently required.</p><img src="https://counter.theconversation.com/content/205645/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Such bodies have proven to bring a cost-effective improvement to the accuracy of criminal justice systems overseas.David Hamer, Professor of Evidence Law, University of SydneyAndrew Dyer, Senior Lecturer, The University of Sydney Law School; Director Sydney Institute of Criminology, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2050662023-05-10T14:49:14Z2023-05-10T14:49:14ZJurors who believe rape myths contribute to dismal conviction rates – but judge-only trials won’t solve the problem<figure><img src="https://images.theconversation.com/files/524403/original/file-20230504-21-17t77o.jpg?ixlib=rb-1.1.0&rect=112%2C51%2C5639%2C3776&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>After years of <a href="https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/">consultations</a> and <a href="https://www.gov.scot/groups/lady-dorrian-review-governance-group/">reports</a>, the Scottish government is proposing to conduct a pilot to test out running rape trials with just a judge – and no jury. </p>
<p>The conviction rate in Scotland for rape and attempted rate is woefully low. Only <a href="https://www.rapecrisisscotland.org.uk/resources-stats-key-info/#:%7E:text=Only%2051%25%20of%20rape%20and,prosecutions%20and%20just%2078%20convictions">51% of trials</a> lead to a conviction, which is simply not acceptable in a modern justice system. Reform is clearly needed to increase convictions. </p>
<p>The idea to run juryless trials is tied to concerns that this low conviction rate is in part due to <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">rape myths held by jurors</a>. Rape myths are <a href="https://journals.sagepub.com/doi/abs/10.1177/0886260511403762?journalCode=jiva">false beliefs</a> about rapists, people who have been raped and the act of rape or sexual assault itself. It’s the belief that people who have been raped are at fault if they wore “revealing” clothing, for example. It’s an assumption that people commonly lie about being raped <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">for revenge purposes</a>.</p>
<p>Research has consistently shown that rape myths <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">influence juror decision-making</a>. The more accepting of rape myths a juror is, the more likely they are to judge the accused with a <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">not guilty verdict</a>.</p>
<p>Jurors who believe, for example, that intoxicated people are partially to blame if they are assaulted, that male sexuality is “uncontrollable” or that rape only ever happens as a violent crime committed by a stranger are <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">more likely to give a not guilty verdict in rape trials</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-do-so-many-men-get-away-with-rape-police-officers-survivors-lawyers-and-prosecutors-on-the-scandal-that-shames-the-justice-system-192782">Why do so many men get away with rape? Police officers, survivors, lawyers and prosecutors on the scandal that shames the justice system</a>
</strong>
</em>
</p>
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<p>It is not only jurors who are affected by rape myths, however. Judges are, after all, also human. They are fallible and could be potentially influenced by rape myths. Therefore, it is unlikely that judge only trials will stop the role that rape myths may play in decisions about verdicts.</p>
<p>Psychological research has shown that experts develop routine and automatic cognitive short cuts so as to make their <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision-making fast, efficient (and often accurate)</a>. Through experience, experts learn what information to use and what information to ignore, which allows their decision making to become more efficient. However, this efficient cognitive system can sometimes filter out important pieces of information incorrectly (such as when a particular case has an abnormal feature or the expert does not have experience of a particular case issue). It can lead to overconfidence, which can make the <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision maker less likely to take advice from others</a>. Expertise can be paradoxical in this way. It can lead to an over-reliance in bias. </p>
<p>Judges and other legal experts <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">are therefore not immune to bias</a>. <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">Research</a> has found that the decisions made by magistrates, for example, are more aligned with <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">biased decision-making models</a> than rational decision-making models. Their decisions are inconsistent across their own caseload and inconsistent when compared to the decision-making of other magistrates. If their decisions had been rational, we could expect significantly more consistency.</p>
<figure class="align-center ">
<img alt="A judge's gavel and sounding block." src="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Judge-only trials are a novel concept in the UK.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Extra-legal factors, even trivial ones such as whether judges have had lunch, have been shown to <a href="https://pubmed.ncbi.nlm.nih.gov/21482790/">bias judges’ decisions</a>. And despite their prevalence, judges have rarely been shown to <a href="https://www.jstor.org/stable/10.1525/nclr.2010.13.4.710">counter rape myths</a> in their courtrooms. Together, the evidence makes clear that there is reasonable doubt as to whether juryless trials will positively influence rape trials.</p>
<h2>Flawed pilot</h2>
<p>The pilot is also unlikely to give an accurate reflection of what would happen were juries to be removed from rape trials.</p>
<p>Government ministers will review the results of the pilot to see if the conviction rate climbs, which is, in itself a serious problem. Any potential review of judicial decisions by ministers may undermine the independence of the judiciary. Likewise, it may potentially bias (explicitly or implicitly) judges into reaching guilty verdicts during the pilot. This pressure may also lead to an inflation of convictions during the pilot, which may not continue post-pilot once supervision from the executive is removed – hardly ideal conditions for establishing fair legal procedures from the perspective of either the accused or the accuser. </p>
<p>Judges are also likely to be more aware of the low conviction rates in rape trials than jurors, again, leading to a pressure on the decision maker to convict. This pressure or bias would outlive the pilot. Retired judge, Lord Uist, <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">recently made similar warnings</a>.</p>
<p>The change being proposed is a drastic one, yet it is unlikely to benefit anyone. From a complainer’s perspective, it is unlikely that the conviction rates will increase dramatically (due to rape myths influencing the judiciary). If they do, this change will be caused by pressure in the system for an increase in convictions and not due to a more rational or fair evaluation of the evidence from the decision maker.</p>
<p>The accused, meanwhile, will no longer be judged by a jury of their peers, rather their fate will be made by a legal professional, employed by the state. That means only a certain view of the world will inform the decision that will drastically alter their life, rather than multiple perspective from all avenues of society.</p>
<p>The change may even decrease confidence in the jury system more generally. Why are jurors competent enough to reach verdicts in murder trials but not rape trials, members of the public may ask. Juryless trials in rape cases may be the first step to the removal of jury trials all together. </p>
<p>A jury selection process would be an alternative strategy for increasing convictions in rape trials and for attenuating the role that rape myths play. Jurors who display a tendency towards rape myths would be screened for and removed from the jury pool using scientific measures such as the <a href="https://journals.sagepub.com/doi/full/10.1177/15248380211050575">Illinois Rape Myth Acceptance scale</a>. This would be a sounder approach than removing juries. In combination with this, rape myths can also be targeted by educating both prospective jurors and young people in schools – and even judges – about the dangers of rape myth. Hopefully education would also remove rape myths from society before individuals are selected to be jurors.</p><img src="https://counter.theconversation.com/content/205066/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Scottish pilot will see rape trials conducted without juries in what could set a dangerous precedent.Lee John Curley, Lecturer in Psychology, The Open UniversityJames Munro, Psychology Lecturer, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2033192023-04-05T17:39:07Z2023-04-05T17:39:07ZWhat Trump’s business fraud charges mean – a former prosecutor explains the 34 felony counts and obstacles ahead for Manhattan’s DA<figure><img src="https://images.theconversation.com/files/519408/original/file-20230404-16-4nc3h5.jpg?ixlib=rb-1.1.0&rect=36%2C24%2C8142%2C5432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump sits during his arraignment at Manhattan Criminal Court on April 4, 2023. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479827019/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=91UAM5JcfpFsdjhsHJQTFrs6FutV0yIjiaMshiAQVMc=">Andrew Kelly-Pool/Getty Images</a></span></figcaption></figure><p>Former President Donald Trump <a href="https://www.nytimes.com/live/2023/03/31/nyregion/trump-indicted">was arraigned</a> in New York on April 4, 2023. Shortly after, the charges that a Manhattan grand jury <a href="https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-Indictment.pdf">indicted him on were made public</a>.</p>
<p>As anticipated, there were numerous counts of falsifying business records related to “<a href="https://www.nytimes.com/2023/04/05/briefing/trump-felony-charges.html">hush money” payments</a> made in 2016 to three individuals with potentially damaging information about Trump during his presidential election campaign. While porn actress Stormy Daniels and another woman <a href="https://apnews.com/article/donald-trump-stormy-daniels-karen-mcdougal-payoffs-40dd9d1f3590dfcd5c494b1815e9eaa2">allegedly had affairs</a> with Trump, another person – a Trump Tower doorman – claimed to know about a <a href="https://nymag.com/intelligencer/2023/04/trump-doormans-love-child-story-cited-in-trump-indictment.html">child Trump “allegedly fathered</a> out of wedlock.” </p>
<p>Manhattan District Attorney Alvin Bragg and his office described Trump’s alleged criminal activity as arising out of <a href="https://www.manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">a “‘catch and kill’ scheme</a> to identify, purchase, and bury negative information about him and boost his electoral prospects,” according to an April 3 media release. </p>
<p>“Trump then went to great lengths to <a href="https://www.manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">hide this conduct</a>, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws,” the statement continues.</p>
<p>I am a <a href="https://scholar.google.com/citations?user=VxvW--wAAAAJ&hl=en">former prosecutor and law professor</a> who studies the American criminal justice system. Now, with the indictment unsealed, The Conversation asked me to weigh in. Here are three key points to understand – and the challenges that lie ahead for the prosecution of the former president.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Black man wears a blue suit and stands at a New York County lectern next to a poster that says 'People v. Donald J. Trump' and in front of an American flag." src="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Manhattan District Attorney Alvin Bragg speaks during a press conference about former President Donald Trump’s arraignment on April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479830860/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=-aIOyO-Xkr1I4AYq_OKuGtaliKTIDMOKbUxvv5SPt58=">Kena Betancur/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Falsified business records are the key issue</h2>
<p>The unsealed indictment alleges 34 separate felony counts of falsifying business records. Creating a false business record with the intent to defraud is a <a href="https://www.nysenate.gov/legislation/laws/PEN/175.05">Class A misdemeanor</a> offense in New York. But the offense becomes a low-level <a href="https://www.nysenate.gov/legislation/laws/PEN/175.10">Class E felony</a> if prosecutors can prove that the false business records were created for the purpose of facilitating a second crime. </p>
<p>It is important to keep in mind that the alleged crimes are not the payoffs, but the false business records used to document those payoffs. That explains the 34 counts. The district attorney alleges a separate offense for each false invoice and business record involved in obscuring the true nature of the transactions. </p>
<p>Each count is punishable by up to four years in prison, but it is possible that, even if there are convictions on multiple counts, the judge will not mandate any incarceration for Trump at all. </p>
<p>One of the surprises in the unsealed indictment is that, while there is a second, separate crime Trump allegedly committed, that crime is not specified. A separate statement of facts released by the Manhattan district attorney’s office <a href="https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-SOF.pdf">lays out further detail</a>, but again does not specifically identify the second crime.</p>
<p>Bragg said during a press conference on April 4, 2023, that New York law <a href="https://www.axios.com/2023/04/04/trump-indictment-felony-alvin-bragg-analysis">does not require him</a> to list the underlying crimes in the indictment. The statement of facts hints at multiple legal theories that Bragg will rely on to elevate the misdemeanor offense to a felony. Specifically, this could include potential tax avoidance and campaign finance violations.</p>
<h2>2. Bragg will have to prove Trump’s involvement, fraudulent intent</h2>
<p>The prosecution has a number of obstacles to overcome to prove its case, which will likely not go to <a href="https://www.nbcnews.com/politics/donald-trump/trump-trial-gop-presidential-primaries-2024-rcna78206">trial</a> until, at the earliest, late 2023 or early 2024.</p>
<p>Although there is still a lot that is not yet known – such as the specific evidence that the prosecutor will rely on – the indictment and statement of facts brings the key obstacles into focus. </p>
<p>Some of the challenges will be factual and others will be legal.</p>
<p>I see two primary factual questions. One will be whether the prosecution can establish Trump’s personal involvement in creating the false business records. It will not be enough to show that Trump authorized the hush money payments at the center of this case. </p>
<p>The prosecution has to show Trump’s personal involvement in the details, and specifically, that he directed others to create the false business records that allegedly hid the true nature of those transactions.</p>
<p>Second, the prosecution will have to prove that Trump’s intent in creating these false business records was to cover up, or facilitate, another crime – such as <a href="https://www.fec.gov/legal-resources/enforcement/">campaign finance violations</a>. If Trump merely sought to avoid embarrassment arising out of these alleged affairs, that will not be sufficient to prove the charged offenses. One way prosecutors try to prove criminal intent in cases like this is through the defendant’s own words. This can be via recordings, if they exist, or testimony from witnesses about what the defendant knew and said about the records as they were being created. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of people hold American flags and signs that say things like 'no one is above the law.'" src="https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519413/original/file-20230404-14-c08pk5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump opponents demonstrate outside of the Manhattan Criminal Courthouse on the day of his arraignment, April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479823666/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=ba_XYK1XxlOHVNido6LFPR-JB8PVo8WnBhst3omLVe4=">Spencer Platt/Getty Images</a></span>
</figcaption>
</figure>
<h2>3. There will be other legal hurdles</h2>
<p>There are also some complex legal questions that the trial judge and potentially an appeals court will be asked to resolve. </p>
<p>Typical prosecutions – for example, a murder trial or one involving drug dealing or insider trading – fall into familiar patterns that allow prosecutors, judges and commentators to follow the same basic blueprint. </p>
<p>There does not appear to be a familiar blueprint for this case – where a false business record was generated in an organization’s records in furtherance of alleged campaign finance violations.</p>
<p>That doesn’t necessarily mean this is a bad case for the prosecution to pursue, but it does mean that Trump’s lawyers will have ample opportunity to launch legal challenges. The most obvious challenge I foresee is an attack on Bragg’s legal theory that takes this case from a misdemeanor to a felony.</p>
<p>Until there is more clarity on that theory, however, it is difficult to predict how the courts will rule.</p>
<p>Beyond the legal and factual complexities, there will be a series of novel aspects of this case that arise because of the defendant’s status as a former president and the <a href="https://www.politico.com/interactives/2023/republican-candidates-2024-gop-presidential-hopefuls-list/">apparent front-runner</a> for the <a href="https://www.bbc.com/news/world-us-canada-63550237">2024 Republican presidential nomination</a>. Every aspect of this case will be scrutinized and, while New York City courts are used to media attention, the attention in this case is likely to be unprecedented. </p>
<p>That attention will put a lot of pressure on a criminal justice system that is already overburdened and imperfect. It is difficult to forecast how this case will play out, but one thing to expect during these proceedings is the unexpected.</p><img src="https://counter.theconversation.com/content/203319/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Bellin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>False business records – not hush money payments – are at the heart of New York’s prosecution of former President Donald Trump. But not all the alleged crimes have been revealed.Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law, William & Mary Law SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977012023-01-23T11:05:35Z2023-01-23T11:05:35ZKenyan prisoners on death row weren’t deterred by the threat of the death penalty: new research findings<figure><img src="https://images.theconversation.com/files/504876/original/file-20230117-18-n09lor.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya last executed a prisoner in 1987 but continues to hand down the death sentence.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/african-american-in-prison-royalty-free-image/88461052?phrase=prison%20black%20man&adppopup=true">Getty Images</a></span></figcaption></figure><p>Kenya’s <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">last execution</a> of a prisoner was in 1987. But the country still hosts a death row population of nearly 600. Almost all were sentenced to death for murder or robbery with violence. New sentences are handed down every year.</p>
<p>Kenya is an “abolitionist de facto” state: the death penalty is still present in law and people are sentenced to death, but they aren’t executed. Currently, 17 of the African Union’s 54 member states are abolitionist de facto – they haven’t carried out an execution of a prisoner for at least 10 years. Just 11 are fully retentionist, meaning that they sentence people to death and have carried out executions.</p>
<p>Advocates for the death penalty will often argue that it <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">deters potential offenders</a> from committing serious crime – even when a country has not executed anyone for years. </p>
<p>But our <a href="https://deathpenaltyproject.org/wp-content/uploads/2022/12/Living-with-a-Death-Sentence-in-Kenya-Prisoners-Experiences-of-Crime-Punishment-and-Death-Row.pdf">recent research</a>, Living with a Death Sentence in Kenya: Prisoners’ Experiences of Crime, Punishment and Death Row, suggests this isn’t true. </p>
<p>We spoke to 671 inmates who had been sentenced to death in Kenya. Just over a quarter had had their sentences commuted to life. Most said they had no idea that their crimes might attract a death sentence. </p>
<p>Our findings support research done in other countries: that the threat of being sentenced to death appears to have little bearing on how people behave. They also support the argument that abolishing the death penalty wouldn’t lead to a spike in violent crime in Kenya.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-has-kenya-not-abolished-the-death-penalty-habit-and-inertia-189955">Why has Kenya not abolished the death penalty? Habit and inertia</a>
</strong>
</em>
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<hr>
<p><a href="https://deathpenaltyproject.org/knowledge/deterrence-policy-position-paper/">According to deterrence theorists</a>, potential offenders will be deterred by the death penalty because they make rational choices about whether to offend. They use knowledge about the relevant laws and punishments, and then weigh up the costs and benefits of offending. They will be deterred if they think it’s likely they will be caught and convicted, and that the possible punishment outweighs the rewards.</p>
<p>Our study found that in most cases, these preconditions for being deterred from committing capital crimes were not met.</p>
<h2>The research</h2>
<p>We studied the experiences of prisoners serving death sentences in Kenya. The work was done through the Death Penalty Project, working with Oxford University’s <a href="https://www.law.ox.ac.uk/death-penalty-research-unit">Death Penalty Research Unit</a>. Our colleagues at the <a href="https://www.knchr.org/">Kenya National Commission on Human Rights</a> carried out interviews with 671 prisoners (33 were women) sentenced to death for murder (44% of the total) and robbery with violence (56%). </p>
<p>Most of the prisoners were poorly educated. Participants mainly used local languages. They might not have been able to understand information distributed in Kenya’s national languages: English and Swahili. This may explain why most didn’t know that the death penalty was the likely punishment for their offence. Our study found that just 1% of our sample said they knew the death penalty was a punishment available for their offence in law. </p>
<p>In addition, only 4% of those convicted of robbery and 8% of those convicted of murder said they had thought about the possibility of being sentenced to death. However, 48% of murderers and 69% of robbers said they had contemplated being sent to prison before committing the crime.</p>
<p>The study also challenged the claim that offenders make rational choices about whether to offend, at least in cases of homicide. For example, the most common reasons given by participants for committing murder were anger (27%), provocation (23%), self-defence (17%) and extreme emotional situations (13%). </p>
<p>Less than a third of participants said knowledge of the law and possible punishments had affected their behaviour at all. Overall, few prisoners who committed crimes that resulted in a sentence of death had, at the time of the offence, considered this potential outcome.</p>
<h2>Shifts across Africa</h2>
<p>In 2022, three sub-Saharan countries abolished the death penalty: the <a href="https://worldcoalition.org/2022/06/26/central-african-republic-abolishes-the-death-penalty/">Central African Republic</a> in June, <a href="https://www.theguardian.com/world/2022/sep/19/equatorial-guinea-abolishes-death-penalty-state-television-reports">Equatorial Guinea</a> in September and <a href="https://www.lusakatimes.com/2022/12/24/hh-announces-the-abolition-of-the-death-penalty-and-defamation-of-the-president-crime/">Zambia</a> in December. </p>
<p>In Zambia in 2016, Cornelius Mweetwa – a former lawyer and police officer who is now minister for the country’s Southern Province – <a href="https://www.parliament.gov.zm/node/5137">argued that deterrence did not “work”</a>. </p>
<p>He noted three assumptions that deterrence theorists use: that people know the penalties for crimes; that they can control their actions; and that people make decisions to commit a crime based on logic not passion.</p>
<blockquote>
<p>However, the three assumptions usually are not true. Therefore … people still commit these crimes. </p>
</blockquote>
<p>Mweetwa made another argument that also came through in our research. That the harsh, socially deprived death row regime, coupled with condemned prisoners’ “<a href="https://www.parliament.gov.zm/node/5137">constant awareness of their impending execution</a>” meant they were being subjected to cruel and inhuman punishment as defined by the <a href="https://legal.un.org/avl/ha/catcidtp/catcidtp.html">UN Convention Against Torture</a>.</p>
<p>While there may be some differences between Zambia and Kenya, most countries in the region will have similar levels of relative deprivation, both material and educational. Therefore, the rationales applied in Zambia leading to abolition would equally apply to Kenya.</p>
<h2>Next steps</h2>
<p>Kenya has been equivocal on its position on the death penalty. While various attempts have been made to move towards abolition, and mass commutations have taken hundreds of prisoners off death row, the country continues to sentence people to death. </p>
<p><a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">Our report</a> reflects on the histories, decision-making and prison experiences of those subject to the death penalty in Kenya. It provides an opportunity to better understand the lives fractured by this system. </p>
<p>And our findings are clear: abolition of the death penalty in Kenya won’t lead to a rise in violent crime. The country should, therefore, take the <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">obvious step forward</a> and abolish the death penalty in law.</p><img src="https://counter.theconversation.com/content/197701/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolyn Hoyle receives funding from the UK Economic and Social Research Council. </span></em></p><p class="fine-print"><em><span>Parvais Jabbar receives funding from the European Union and the UK Foreign, Commonwealth and Development Office.</span></em></p>Research finds that the threat of being sentenced to death has no bearing on how people contemplate violent crime.Carolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of OxfordParvais Jabbar, Co-Founder and Co-Executive Director of the Death Penalty Project, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1982182023-01-19T21:22:32Z2023-01-19T21:22:32ZWhat is involuntary manslaughter? A law professor explains the charge facing Alec Baldwin for ‘Rust’ shooting death<figure><img src="https://images.theconversation.com/files/505468/original/file-20230119-26-w9y9jg.jpg?ixlib=rb-1.1.0&rect=48%2C169%2C5345%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Alec Baldwin accidentally shot and killed a cinematographer, Halyna Hutchins, in late 2021 while filming a movie in New Mexico.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PropFirearmMovieSet/373f9ec3a3014e6c985d1d165d7bca12/photo?Query=alec%20baldwin%20rust&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=63&currentItemNo=25">AP Photo/Jae C. Hong</a></span></figcaption></figure><p>A prosecutor in New Mexico <a href="https://www.nytimes.com/2023/01/19/arts/rust-shooting-charges-alec-baldwin.html">intends to charge Alec Baldwin</a> with two counts of involuntary manslaughter it was announced on Jan. 19, 2023, over the <a href="https://www.nytimes.com/2021/10/21/us/alec-baldwin-shooting-rust-movie.html">deadly shooting</a> on the set of the film “Rust” in 2021. The shooting occurred while Baldwin was rehearsing a scene with a gun that had been loaded with live ammunition instead of blanks. The prosecutor also intends to charge Hannah Gutierrez-Reed, the <a href="https://www.careersinfilm.com/armorer/">armorer</a> responsible for <a href="https://www.nbcnews.com/news/us-news/after-rust-shooting-industry-veterans-say-buck-stops-armorers-movie-n1282743">overseeing the safety of firearms</a> on the set, with two counts of involuntary manslaughter as well. </p>
<p>As a <a href="https://scholar.google.com/citations?user=X8tNfOsAAAAJ&hl=en&oi=ao">professor of law</a>, my job is to understand the nuance of the U.S. legal system. Involuntary manslaughter occurs when a person unintentionally, but still unlawfully, kills another person. And a prosecutor will need to show the unlawful nature of either Baldwin’s or Gutierrez-Reed’s actions to get a conviction in this case.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of handgun cartridges with the tops pinched closed and no bullet." src="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Baldwin thought the gun was loaded with blanks, ammunition that contains powder but not a bullet.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Buffalo_Blanks_Mounted_Shooting_Blanks.jpg">KenAmorosano/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>A reckless or negligent accident</h2>
<p>To convict someone of involuntary manslaughter, a prosecutor has to prove that the defendant <a href="https://www.findlaw.com/criminal/criminal-charges/involuntary-manslaughter-overview.html">acted either recklessly or with criminal negligence</a>.</p>
<p>To prove someone acted recklessly, a prosecutor has to show that the defendant was aware of the risk they were creating with their actions – like a drunk driver crashing into a car and <a href="https://www.ksdk.com/article/news/crime/driver-convicted-involuntary-manslaughter-killed-baby-2-parents-jefferson-co/63-e9d29793-5187-446e-9067-96e8f29e0806">killing a baby and her parents</a>. In contrast, the charge of criminal negligence is filed when a defendant is not aware of the risk, but a reasonable person in the position of the defendant would have been aware of the risk. For example, if someone rents out an apartment without smoke detectors and there is a fire that kills the occupants, the owner of the apartment could be charged with involuntary manslaughter.</p>
<p>The question for a potential jury is whether Baldwin was guilty of either reckless or criminally negligent actions that resulted in the death of <a href="https://www.msn.com/en-us/news/world/halyna-hutchins-in-her-own-words/ar-AA16wWuh">Halyna Hutchins</a>, the cinematographer on the “Rust” set. </p>
<p>The prosecutor is alleging that <a href="https://www.nytimes.com/2023/01/19/arts/rust-shooting-charges-alec-baldwin.html?">Baldwin had a duty</a> to ensure that the gun and the ammunition he used were properly checked and that without doing that check himself, Baldwin should never have pointed the gun at anyone. Although that is what the prosecutor is claiming, a complicating factor is that there was another person, an on-set safety person responsible for the weapons and ammunition. </p>
<p>To convict Baldwin of manslaughter – assuming the case goes to trial – the prosecutor will have to convince a jury of two things. First, that Baldwin could not reasonably rely on Gutierrez-Reed to do her job and ensure that the gun did not have any live ammunition in it. And second, that Baldwin acted recklessly, or at least with criminal negligence, by not checking the gun and the ammunition himself before pointing the gun at the person he killed.</p><img src="https://counter.theconversation.com/content/198218/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To convict Alec Baldwin of manslaughter for the on-set deadly shooting of Halyna Hutchins in 2021, prosecution will need to show that the actor was either reckless or criminally negligent.Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968752023-01-10T05:37:59Z2023-01-10T05:37:59ZDog theft is increasing, and so are new laws targeting this awful crime. But will they help?<figure><img src="https://images.theconversation.com/files/503739/original/file-20230110-19-2vxcga.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7984%2C5235&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Amid the first year of the pandemic in 2020, crime statistics in Victoria showed an <a href="https://www.heraldsun.com.au/news/victoria/dog-owners-warned-theft-on-the-rise/news-story/3bfd3b8837318a97f76f3ad617648733">increase in the number of dogs reported stolen</a>. Since then, media reports suggest there’s been an <a href="https://www.abc.net.au/adelaide/programs/breakfast/stolen-dog-tona/13695376">increase in dog theft</a> in Australia. </p>
<p>The <a href="https://www.abc.net.au/news/2021-05-20/dog-prices-rise-under-covid-fuelled-demand/100150562">price of dogs has increased</a> during the pandemic given higher demand and decreased supply, particularly of purebred and designer dogs. Dog theft is said to be rising due to offenders <a href="https://hansardsearch.parliament.sa.gov.au/daily/lh/2022-12-01/50">exploiting this situation</a>. Media reports suggest dogs are being <a href="https://www.news.com.au/lifestyle/home/pets/pet-investigator-claims-dogs-are-being-stolen-from-homes-and-sold-on-the-black-market/news-story/cfda438197100c990d14475a14eb3860">targeted to be sold on the black market</a>. </p>
<p>Dogs have reportedly been stolen from outside <a href="https://www.9news.com.au/national/news-sa-big-issue-vendor-devastated-after-chihuahua-stolen-outside-supermarket/ea3ed4ba-8dd4-4dd8-affe-a57f0d36b435">supermarkets</a> and <a href="https://www.youtube.com/watch?v=s1FlWxgNzrY">restaurants</a>, from <a href="https://mypolice.qld.gov.au/news/2020/04/16/ipswich-police-pounce-on-stolen-puppy/">backyards</a>, <a href="https://www.9news.com.au/national/beloved-pet-dog-stolen-in-targeted-burglary-in-melbournes-southeast/3dfeaf61-3dc1-447d-b0be-b5292c0ed39a">inside homes</a> and even <a href="https://7news.com.au/news/crime-sydney/public-appeal-after-theft-of-striking-seven-week-old-puppy-from-doggy-daycare-on-nsw-central-coast-leaves-its-carers-heartbroken-c-5691614">doggy day care</a>. <a href="https://www.abc.net.au/news/2022-12-20/sa-bring-uggie-home-for-christmas/101794810">Therapy</a> <a href="https://www.9news.com.au/national/victoria-crime-woman-arrested-after-the-alleged-theft-of-therapy-dog-essendon-christmas/5113b643-6380-4ffa-a166-b1b7036ac092">dogs</a> have also allegedly been stolen.</p>
<p>However, because of limited reliable data outside media reports, the true nature and extent of dog theft across Australia aren’t known.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1589098213985947648"}"></div></p>
<p>In December 2022, South Australia became the latest Australian jurisdiction to introduce a <a href="https://www.legislation.sa.gov.au/__legislation/lz/v/a/2022/summary%20offences%20(dog%20theft)%20amendment%20act%202022_30/2022.30.un.pdf">standalone criminal offence of dog theft</a>. <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s503.html">New South Wales</a> and the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nt/consol_act/soa1923189/s54.html">Northern Territory</a> both have similar offences, and there are calls for other jurisdictions to follow suit.</p>
<p>But will specific dog theft laws actually help stop this awful crime? The practical effects are not clear cut, but such laws do have symbolic value, recognising dogs aren’t merely property.</p>
<h2>How does the law deal with people who steal dogs?</h2>
<p>Stolen dogs aren’t treated as cases of abduction or kidnapping in Australia. In other words, “dognapping” is not a specific crime. If someone is alleged to have stolen a dog, they are usually charged with <a href="https://aclawgroup.com.au/criminal-law/offences/dishonesty-offences/stealing/">larceny or theft</a>. </p>
<p>The offence of theft captures the stealing of dogs because, in law, <a href="https://www.abc.net.au/news/2018-02-18/pet-ownership-your-dog-is-property-not-a-fur-baby/9414096">dogs are classified as property</a>.</p>
<p>But when a dog is stolen, significant emotional distress is often caused to both the owner and the dog. Dogs are often recognised as <a href="https://academic.oup.com/nyu-press-scholarship-online/book/42998">members of the family</a>, despite their legal status as property. </p>
<p>In both Australia and abroad, increasing attention is being paid to specific offences that seek to address the emotional impact caused when a dog is stolen. </p>
<h2>New dog theft offences</h2>
<p>Under the <a href="https://www.legislation.sa.gov.au/__legislation/lz/v/a/2022/summary%20offences%20(dog%20theft)%20amendment%20act%202022_30/2022.30.un.pdf">new South Australian law</a>, the offence of dog theft carries a maximum penalty of $50,000 or imprisonment for two years. </p>
<p>Until now, a person stealing a dog in South Australia had been <a href="https://www.abc.net.au/news/2022-04-16/man-charged-with-dog-theft-over-stolen-pit-bull-puppies/100995334">charged</a> under the general offence of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/clca1935262/s134.html">theft</a>, which has a maximum penalty of ten years imprisonment. </p>
<p>The new offence of dog theft is <a href="https://hansardsearch.parliament.sa.gov.au/daily/uh/2022-11-03/9">targeted</a> at people who seek to make financial gain from stealing and selling dogs. While the new offence has a much lower maximum term of imprisonment than general theft, it’s hoped the substantial financial penalty attached to the new offence acts as <a href="https://hansardsearch.parliament.sa.gov.au/daily/lh/2022-12-01/50">a strong deterrent</a> to potential offenders motivated by profit. </p>
<p>Despite the higher financial penalty, the new offence is unlikely to make it easier for police to prosecute people who steal dogs. People who steal dogs are already being prosecuted under the general offence of theft; the new offence doesn’t fill a gap in the law.</p>
<h2>Symbolic value</h2>
<p>However, a standalone offence of dog theft does have symbolic value. It recognises dog theft is inherently different from other types of property theft.</p>
<p>As South Australia’s deputy premier, Susan Close, <a href="https://hansardsearch.parliament.sa.gov.au/daily/lh/2022-12-01/50">said</a> while reading the dog theft bill in parliament:</p>
<blockquote>
<p>A new summary offence sends a clear signal that anyone who steals a dog will face serious consequences. It also acknowledges that dogs are not simply property but are deeply loved members of the family which cannot easily be replaced.</p>
</blockquote>
<p>Meanwhile, the United Kingdom looks set to take a different approach, with pet abduction <a href="https://www.gov.uk/government/news/pet-abduction-to-be-made-new-criminal-offence-in-crackdown-on-pet-theft">to become a criminal offence</a>. The <a href="https://www.gov.uk/government/news/taskforce-launched-to-investigate-reported-rise-in-pet-thefts.">Pet Theft Taskforce</a>, established to investigate the reported increase in pet theft in the UK, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1014947/Pet_Theft_Taskforce_Report_GOV.UK_PDF.pdf">recommended an offence</a> of pet abduction instead of pet theft.</p>
<p>According to the taskforce, this would better reflect the view that stolen pets are not mere property, but sentient beings.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/pet-theft-is-on-the-rise-with-more-than-60-dogs-stolen-in-the-uk-every-week-91418">Pet theft is on the rise, with more than 60 dogs stolen in the UK every week</a>
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<h2>Should dogs still be classified as property?</h2>
<p>There’s ongoing debate whether the legal classification of animals as property in Australia is <a href="https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/12/Shyam.pdf">keeping pace with community attitudes</a>. </p>
<p>There’s a shift towards recognising animals <a href="http://classic.austlii.edu.au/au/journals/SydLawRw/2020/13.html#fn67">as sentient beings in the law</a>. </p>
<p>In 2019, the ACT became the first Australian jurisdiction to <a href="https://theconversation.com/acts-new-animal-sentience-law-recognises-an-animals-psychological-pain-and-pleasure-and-may-lead-to-better-protections-124577">recognise sentience of animals in legislation</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1179904316938698753"}"></div></p>
<p>In family law, when couples separate, dogs are treated as part of the asset pool in property settlements. But there are calls for a new pet custody model that <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/journals/CanLawRw/2022/6.html?stem=0&synonyms=0&query=AltLawJl%202006%2051%20or%202006%20AltLawJl%2051">moves away from viewing dogs as property</a>. </p>
<p>In the criminal law, a pet abduction offence such as that proposed in the UK would better reflect the view that dogs aren’t merely property.</p>
<p>However, beyond symbolism, in practical terms a change in the law may not reduce the frequency of the offence. The general offence of theft is already an adequate tool to prosecute those who steal dogs.</p><img src="https://counter.theconversation.com/content/196875/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Cooper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will specific dog theft laws actually help stop this crime? The practical effects aren’t clear cut, but such laws do have symbolic value, recognising dogs aren’t merely property.Lisa Cooper, Lecturer in Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968412022-12-19T21:57:46Z2022-12-19T21:57:46ZWhat the criminal referral of Trump means – a constitutional law expert explains the Jan. 6 committee action<figure><img src="https://images.theconversation.com/files/501988/original/file-20221219-24-bna81y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Jan. 6 House Committee announced four recommended charges against Donald Trump, including conspiracy to defraud the US.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1450388267/photo/house-select-committee-to-investigate-the-january-6th-attack-on-the-u-s-capitol-holds-final.jpg?s=612x612&w=gi&k=20&c=E1rElTdlVPQiszH-7ZgsepscBa6aIY5H8C1o4izW81M=">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p><em>After 18 months investigating, <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">the House Select Committee to Investigate the January 6 Attack on the United States Capitol held its final public meeting</a> on Dec. 19, 2022. The panel recommended that the U.S. Department of Justice bring criminal charges against former President Donald Trump for his efforts to overturn the 2020 presidential election results.</em> </p>
<p><em>The House committee recommended that the Justice Department pursue four main charges against Trump – <a href="https://www.law.cornell.edu/uscode/text/18/1505">obstruction of an official proceeding</a>, <a href="https://www.law.cornell.edu/uscode/text/18/371">conspiracy to defraud</a> the U.S., conspiracy to <a href="https://www.law.cornell.edu/uscode/text/18/1001">make a false statement</a> and <a href="https://www.law.cornell.edu/uscode/text/18/2383">inciting or assisting</a> an insurrection. The committee also recommended <a href="https://twitter.com/nprpolitics/status/1604924716833275955">that the House Ethics Committee</a> sanction four Republican members of Congress who refused the committee’s subpoena requests to provide information about the events of Jan. 6.</em></p>
<p><em>But what does that all mean? The Conversation asked <a href="https://law.scu.edu/faculty/profile/russell-margaret/">Margaret Russell</a>, professor of constitutional law at Santa Clara University, to help explain why these recommended charges are important, where they fall short – and what could come next.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle aged Black man with a white beard wears sunglasses and stands in front of the U.S. Capitol building, as he is surrounded by people holding up voice recorders and phones." src="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Rep. Bennie Thompson, chairman of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, talks to reporters in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1244858949/photo/congress-works-on-capitol-hill.jpg?s=612x612&w=gi&k=20&c=al9RLfPqCreysmniFO5etKirObFJMB1bZQInlCcDbAg=">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. What are the biggest takeaways from these referrals?</h2>
<p>People have wondered whether the proceedings would have any strong result. Now it is clear that the committee does not see these proceedings as primarily about making a historical record. They have done more than that.</p>
<p>One big takeaway is that Trump is at the top of the pile. When the proceedings began it was not clear – though many people suspected and alleged – how much he knew, when he knew it, what he said before Jan. 6, what he knew and said before the election’s certification, and <a href="https://www.theguardian.com/us-news/2022/oct/13/january-6-hearing-key-takeaways">whether he knew</a> he really had not won the election. It is now clear Trump was the architect of most of this conspiracy – and the committee is urging specific accountability for him and other people who played a part in it. </p>
<p>It is also interesting to think about the committee urging criminal prosecution. It really means it reached the brink. This bipartisan committee, which comprised seven Democrats and two Republicans, decided unanimously that backing away from criminal charges would be a dereliction of its duty to recommend, based on what it has found. Committee members are not telling the Department of Justice what it has to do – they can’t. But in their investigatory role they concluded that in order for there to be accountability, they needed to recommend charges.</p>
<h2>2. Do these referrals have any legal teeth?</h2>
<p>The magnitude of these recommended charges, particularly the insurrection one, is unprecedented. Rather than saying they don’t have legal teeth, I think they certainly have very strong teeth in the sense of urging the Department of Justice to make sure that there is accountability. Accountability is a word that jumped out to me in committee members’ statements on Dec. 19 – there must be accountability, even though this committee, of course, cannot force the Department of Justice to do anything. </p>
<p>The charges, of trying to overthrow the government, essentially, go right to the heart of the Constitution. There is no historical precedent for this. The Justice Department’s determination to pursue the referrals would depend on the validity of the House commitee’s findings. And since the department <a href="https://www.washingtonpost.com/national-security/2022/11/15/trump-doj-2024-special-master/">has been doing its own</a> investigation of Trump, it wouldn’t be starting from ground zero. The committee’s work could be added to what it has.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a gas mask stands in a crowd of people with Trump and American flags and holds up a bronze bust of a man wearing a suit" src="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A rioter at the Capitol attacks on Jan. 6, 2021, holds up a bust of Donald Trump.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1230458006/photo/topshot-us-politics-election-trump.jpg?s=612x612&w=gi&k=20&c=sW1bj2Nb_qAhS5NWlBdWxo2KyauL-Go2Uxfs9ohAK9s=">Roberto Schmidt/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. Will the new GOP Congress have any say in these referrals?</h2>
<p>Now that the report has been handed over and the referrals made, I would imagine the Department of Justice will start considering it. And, so, when there is a difference in leadership of the House there won’t be any way to undo it. The House can conduct its own investigations, but it cannot stop the Department of Justice and it cannot undo this report and its recommendations. Attorney General Merrick Garland has clearly <a href="https://apnews.com/article/politics-donald-trump-merrick-garland-government-and-550c01de053c08db4d53ca57f315feb6">sent a message</a> that the department he runs is not influenced by outside factors. And he has tried to insulate any prosecutions from accusations of political influence by appointing <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">a special counsel</a> to oversee the Trump investigations.</p>
<h2>4. Were lawmakers who ignored the subpoenas legally required to obey the committee’s request for testimony?</h2>
<p>I think the answer is yes. The Constitution (Article I, Section 5) states that each chamber makes its own rules that bind its members. The Supreme Court has underscored this constitutional power as well as the legal legitimacy of the congressional subpoena. The consequences of ignoring a congressional subpoena might ultimately wind up within the purview of the Ethics Committee, but there are consequences.</p>
<h2>5. Does the House committee’s report increase the likelihood that Trump will be charged?</h2>
<p>I think it makes a strong argument in the public sphere for the prosecution of Trump, which is what a lot of people have been waiting for. It doesn’t guarantee a prosecution, but it spells out, I think meticulously, why Trump is included in this and at the forefront.</p>
<p>The House committee’s message of accountability – that if the nation is to consider itself to be a democracy that works there must be accountability for Trump and others – was made very powerfully. As committee member <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">Adam Schiff said on Dec. 19</a>, “I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.”</p><img src="https://counter.theconversation.com/content/196841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret M. Russell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The House Committee’s criminal referrals show that the proceedings are not just about a historical record – they argue that Trump should be held accountable for four criminal charges.Margaret M. Russell, Associate Professor of Law, Santa Clara UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1943932022-12-05T14:57:17Z2022-12-05T14:57:17ZShould sports cheats be prosecuted? When violence in the ring or on the field becomes criminal<figure><img src="https://images.theconversation.com/files/497213/original/file-20221124-12-i6i0cu.jpg?ixlib=rb-1.1.0&rect=301%2C184%2C6159%2C2802&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/box-professional-match-on-dark-background-1702868416">Andrey Burmakin / Shutterstock</a></span></figcaption></figure><p>Professional boxing is no stranger to controversy. The <a href="https://www.bmj.com/content/335/7618/469.1#:%7E:text=The%20BMA%20has%20been%20campaigning,olds%20as%20a%20first%20step.&text=And%20the%20argument%20that%20the,%E2%80%9Cbetter%E2%80%9D%20themselves%20is%20patronising">British Medical Association</a>, the trade union for doctors in the UK, has called for years for the sport to be banned due to its damaging effects. It has a <a href="https://sk.sagepub.com/reference/sportsmedicine/n76.xml">higher potential</a> for injury than any other contact sport.</p>
<p>Boxing encourages participants to knock out their opponent. Such conduct often involves the deliberate infliction of grievous bodily harm. Outside of the ring, this conduct could land you with a prison sentence. When boxers break the rules of a contest, there is also the potential for criminal charges.</p>
<p>Infamously, US boxer Luis Resto spent time in prison <a href="https://www.nysportsday.com/2022/08/15/the-fight-that-still-haunts-luis-resto/">for assault</a> after replacing the padding in his gloves with plaster before a 1983 fight. This seems like an obvious case for prosecution, but the line is not always so clear. Now, a doping scandal has raised the question: how does the law decide when sports violence or misdemeanours become criminal?</p>
<p>In October, welterweight contender Conor Benn failed two drug tests ahead of his highly anticipated bout with Chris Eubank Jr. A fighter failing a doping test is nothing new. But this information was revealed in a tabloid days before the fight, suggesting that without the exposé, the bout would have gone ahead. </p>
<p>Benn has <a href="https://www.theguardian.com/sport/2022/oct/26/conor-benn-relinquishes-boxing-licence-with-allegations-of-misconduct-upheld">maintained his innocence</a>, but voluntarily relinquished his boxing licence in the weeks following the tests. This sidestepped a full misconduct hearing, in a move that <a href="https://boxing-social.com/news/dan-rafael-slams-conor-benns-team/">some queried</a>. </p>
<p>In response, boxer and commentator Spike O'Sullivan has called for steroid users to be charged with <a href="https://www.irishexaminer.com/sport-columnists/arid-40978646.html">attempted murder</a>. But in cases of sporting foul play, it’s not always obvious when the criminal courts should intervene.</p>
<h2>Sports cheat or violent criminal</h2>
<p>Luis Resto’s case was clear cut. The victim, Billy Collins Jr, did not consent to the specific risks associated with fighting an opponent with “loaded gloves” just by taking part in the boxing match. </p>
<p>When it comes to other forms of cheating, the legal response has been murkier. </p>
<p>One example is the 2004 case <a href="https://www.bailii.org/ew/cases/EWCA/Crim/2004/3246.html">R v Barnes</a>, where a footballer appealed his conviction for grievous bodily harm inflicted on an opponent during a match. He performed a hard and high sliding tackle but maintained that the injury to his opponent’s leg was accidental.</p>
<p>The court of appeal overturned the conviction, reasoning that by taking part in a legitimate sport, someone effectively consents to the risk of injury, insofar as it is incidental to the game. This provides a potential defence for the accused, even if they broke the sport’s rules (for example, by fouling another player). </p>
<p>What remains unclear is what behaviour (including cheating) is actually incidental to “legitimate sport” – an important factor that depends on context.</p>
<p>Courts have intervened when competitors have engaged in “off the ball” violence. Footballer Eric Cantona was convicted of assaulting a fan during a match by leaping into the crowd and executing a <a href="https://www.theguardian.com/football/from-the-archive-blog/2015/jan/25/eric-cantona-kung-fu-kick-20-1995-archive#:%7E:text=In%20a%20packed%20court%20room,granted%20bail%20pending%20an%20appeal.">“kung-fu kick”</a> in 1995. </p>
<figure class="align-center ">
<img alt="A football referee in a light blue jersey holds up a red card during a match" src="https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Courts have said that playing a sport means consenting to possible injury – even if it breaks the rules of the game.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/kyiv-ukraine-december-6-2016-referee-532120480">Review News / Shutterstock</a></span>
</figcaption>
</figure>
<p>The Barnes case was concerned with tackles and foul play during a game, rather than preemptive cheating to maximise one’s potential to inflict serious injury ahead of a contest. Luis Resto’s gloves would fall under the latter category, but performance-enhancing drugs are a grey area. Neither the UK courts nor parliament have paid close attention to the boundaries of the consent defence in such circumstances.</p>
<p>Interestingly, in the now hypothetical case of Benn and Eubank Jr, <a href="https://metro.co.uk/2022/10/05/chris-eubank-jr-accuses-conor-benn-of-lying-as-drug-test-drama-takes-new-twist-17510268/">it was reported</a> that Eubank Jr was happy to proceed with the contest despite his opponent’s positive test: “I’ve prepared, I have done my job and now it is in the hands of the promoters, the governing bodies to make this fight happen. All I can do is be ready.” In such dangerous circumstances, it is questionable whether any prior consent could provide a defence to a subsequent charge of serious violence. </p>
<h2>Why is boxing legal, anyway?</h2>
<p>Legally, boxing rests on shakier foundations than other sports. Boxing originally appears to have been regarded as lawful not through any application of principle, or by reference to the legal rules applying to other sports. Rather, it appeared to 19th-century judges to be tamer than the bare-knuckle prizefights they were keen to <a href="https://www.lawcom.gov.uk/app/uploads/2016/08/No.134-Criminal-Law-Consent-and-Offences-Against-the-Person-A-Consultation-Paper.pdf">outlaw</a>. This exceptional category of legally permissible violence has endured only because of its popularity – no government has (yet) seen fit to ban it. </p>
<p>Professional and amateur boxing are also regulated. Bouts have referees, padded gloves, weight classes and other rules to mitigate medical risks to participants. The courts have found that, due to these factors, consensual boxing would be a “legitimate sport”, exempt from the ordinary operation of criminal laws prohibiting <a href="https://swarb.co.uk/regina-v-coney-qbd-18-mar-1882/">serious violence</a>.</p>
<p>Unlicensed forms of boxing, such as <a href="https://journals.sagepub.com/doi/full/10.1177/0038026119829762">white collar</a> contests and resurgent <a href="https://theculturetrip.com/europe/united-kingdom/england/london/articles/the-rise-of-bare-knuckle-boxing-in-london/">bare-knuckle boxing</a> are not so clearly exempt. The position of other combat sports such as Thai boxing and mixed martial arts is also uncertain. These are subject to varying degrees of regulation, and the senior courts in England and Wales have simply not yet had the opportunity to <a href="https://www.cps.gov.uk/publication/agreement-handling-incidents-falling-under-both-criminal-football-regulatory">definitively rule</a> on their lawfulness.</p><img src="https://counter.theconversation.com/content/194393/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe Purshouse does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When cheating in sport leads to injury, it’s not always clear when the courts should intervene.Joe Purshouse, Senior Lecturer in Criminal Law and Justice, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932372022-11-15T13:30:16Z2022-11-15T13:30:16ZNigeria has too many prison inmates awaiting trial. Technology could achieve swifter justice<figure><img src="https://images.theconversation.com/files/493842/original/file-20221107-15-in36l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An activist protests against the incarceration of hundreds of inmates imprisoned without trial in Nigeria. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-of-the-organisation-for-civil-rights-and-equal-news-photo/1228319258?phrase=prisons%20inmates%20nigeria&adppopup=true">Pius Utomi Ekpei/AFP via Getty Images </a></span></figcaption></figure><p>Nigeria’s prison population is more than <a href="https://www.corrections.gov.ng/statistics_summary">76,000</a>, housed in <a href="https://www.prisonstudies.org/country/nigeria">240</a> correctional centres. About <a href="https://www.corrections.gov.ng/statistics_summary">70%</a> of these inmates are still awaiting trial. They have been arrested and charged, but not yet convicted or cleared.</p>
<p>This is the highest percentage of awaiting-trial prisoners in Africa. World Prison Brief’s latest report puts the figure at <a href="https://www.prisonstudies.org/country/ghana">12.4% for Ghana</a> and <a href="https://www.prisonstudies.org/country/south-africa">32.9% for South Africa</a>.</p>
<p>The presumption of innocence is enshrined in Nigeria’s constitution, in <a href="https://streetlawyernaija.com/section-36-of-the-constitution-fair-hearing/#:%7E:text=of%20the%20matter">section 36(5)</a>. It says:</p>
<blockquote>
<p>Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. </p>
</blockquote>
<p>But the reality in Nigeria, as a number of <a href="https://www.prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf">researchers have shown</a>, is that many people accused of crimes are presumed to be guilty. They are arrested and imprisoned before their cases are investigated. </p>
<p>Add to this a <a href="https://omaplex.com.ng/adjudication-timeframe-in-nigerias-criminal-jurisprudence-the-bill-that-should-have-passed/">court system beset by delays and backlogs</a> – it’s no wonder that Nigeria has so many inmates awaiting trial.</p>
<p>There are reports of accused people <a href="https://www.nytimes.com/2017/09/19/us/alabama-kharon-davis-speedy.html">spending 10 years awaiting trial in the US</a>, and between <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">12 and 15 years in Nigeria</a>. This long wait in Nigeria is against <a href="https://www.lawglobalhub.com/section-293-299-administration-of-criminal-justice-act-2015/#:%7E:text=Section%20296%20Administration%20of%20Criminal%20Justice%20Act%202015,-Time%20and%20protocol&text=(1)%20Where%20an%20order%20of,returnable%20within%20the%20same%20period">section 296 of the 2015 Administration of Criminal Justice Act</a>. The law provides that the period of remand should not exceed 28 days. </p>
<p>There have been some efforts to address the situation. The government offers some free legal services through <a href="https://legalaidcouncil.gov.ng/">the Legal Aid Council</a>. It provides free legal assistance and representation, legal advice and alternative dispute resolution to indigent Nigerians to enhance access to justice. But the problem seems intractable.</p>
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Read more:
<a href="https://theconversation.com/waiting-for-trial-can-be-worse-than-facing-the-sentence-a-study-in-nigerian-prisons-145480">Waiting for trial can be worse than facing the sentence: a study in Nigerian prisons</a>
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<p>We wondered whether a technological solution might be a step towards addressing trial backlogs.</p>
<p>So we set out <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">to study</a> the situation at two correctional centres in Abakaliki and Afikpo, towns in Ebonyi State in south-east Nigeria. We investigated the underlying causes of long awaiting-trial periods and ways of addressing them.</p>
<p>The main causes of delay include the slow pace of investigation by the police and the loss of case files. Others are an inadequate court system and poor access to lawyers. </p>
<p>Our findings suggest that a repository portal system could help address most of the issues delaying trials. The portal would be a database where information about accused persons and their current trial status would be stored. It would be easily accessible, too. Material relating to investigations and police findings could be uploaded to the portal, which would then automatically allocate cases, depending on the nature of the alleged offences, to the relevant court. </p>
<p>This would address the challenge of loss or manipulation of data by criminal justice agents, like the police and correctional centre officials. It also tackles the challenge posed by manually sorting through large files. </p>
<p>A system like this has not been proposed or applied in any African country yet.</p>
<h2>What we did</h2>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">Our study</a> focused on 1,343 inmates at Abakaliki and Afikpo correctional centres. Of that figure, 845 (63%) were awaiting trial.</p>
<p>We used structured questionnaires and unstructured in-depth interviews with a sample of 1,498 respondents drawn from the Nigerian criminal justice agencies and “awaiting-trials”. We asked the participants about their experiences in the criminal justice system, whether the processes were automated or manual, and how the process affected their experience. This was with a view to identifying the gaps caused by manual methods in the system, and determining how information and communication technology could fill that gap. </p>
<p>Nigeria’s criminal justice bureaucracy uses manual processes to record and preserve information about suspects and evidence, transfer case files, prepare for suspects’ court appearances and allocate cells to inmates. </p>
<p>Some of the problems identified are losses of case files, degradation of evidence and delays in preparing inmates for court appearances. Other problems are delays in concluding cases and improper allocation of cells. </p>
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<strong>
Read more:
<a href="https://theconversation.com/nigerias-jailbreaks-point-to-a-prison-system-out-of-step-with-reality-186935">Nigeria's jailbreaks point to a prison system out of step with reality</a>
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<p>The results showed that 39.1% of the police officers (241 of 617), 69% of the prison officials (100 of 145) and 53.1% of the court officials (60 of 113) were of the view that automation of the criminal justice processes using a repository system could address the delays. </p>
<p>These findings are in line with our qualitative data. The criminal justice agents we interviewed affirmed the importance of linking and automating all the criminal justice agencies with a repository system. </p>
<h2>Developing the portal</h2>
<p>The information on the portal should categorise offences as simple, misdemeanour or felony. There should be detailed information about the suspects, offences they are accused of and legal provisions guiding such offences. </p>
<p>Here’s the process we propose for using the repository system:</p>
<ul>
<li><p>police upload cases onto a database</p></li>
<li><p>the system can transfer cases to the nearest courts of competent jurisdiction</p></li>
<li><p>the trial can commence</p></li>
<li><p>after judgement, those found guilty will be sent to correctional centres to serve their sentences</p></li>
<li><p>those acquitted will be released and their cases will be marked closed.</p></li>
</ul>
<p>To ensure seamless functioning of the system, a monitoring body should be created, independent from the Nigerian Correctional Service. It would monitor the activities of the criminal justice agents.</p><img src="https://counter.theconversation.com/content/193237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Benjamin Okorie Ajah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A central repository system offers practical solutions to reducing the large number of awaiting-trial inmates in Nigeria.Benjamin Okorie Ajah, Lecturer, University of NigeriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1905232022-10-21T12:38:19Z2022-10-21T12:38:19ZIntuitions about justice are a consistent part of human nature across cultures and millennia<figure><img src="https://images.theconversation.com/files/490972/original/file-20221020-19-jm6ebd.jpg?ixlib=rb-1.1.0&rect=1531%2C144%2C4475%2C3287&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Laws from different places and eras largely reflect a universal human sense of justice.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/lady-justice-statue-of-justice-in-library-royalty-free-image/1313531795">simpson33/iStock via Getty Images Plus</a></span></figcaption></figure><p>“Thou shalt not kill” may be the most recognizable moral prohibition in societies around the world. </p>
<p>But where does your sense of justice come from?</p>
<p>Throughout history, justice and laws about wrongdoing have been <a href="https://www.sefaria.org/texts/Tanakh">attributed to one god or another</a>. More recently, <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674518360">justice has been traced to moral truths</a> that can be discovered by judges and other legal experts, and to <a href="https://www.jstor.org/stable/41203513">social norms that vary across cultures</a>. </p>
<p>However, <a href="https://scholar.google.com/citations?user=AKHl_vwAAAAJ&hl=en&oi=ao">our</a> <a href="https://scholar.google.com/citations?hl=en&user=CzKmINsAAAAJ&view_op=list_works&sortby=pubdate">research</a> instead suggests that the human sense of justice, and criminal laws, <a href="https://doi.org/10.1038/s41562-020-0827-8">is generated by the human brain</a>.</p>
<p>Put simply: Being human makes you a decent lawmaker even if you’ve never stepped foot in law school. To an important extent, criminal laws appear to be the end products of gut feelings about justice that are a part of human nature.</p>
<p>Here’s how we investigated just how universal these intuitions are:</p>
<h2>Testing the human brain’s sense of justice</h2>
<p>Human conflict ranges from the mild, as when neighbors disagree about the appropriate loudness of music, to the serious, including cases of fraud, robbery, rape, homicide – the stuff of criminal law.</p>
<p>Laws and litigation come in handy when you’re butting heads with someone. But your <a href="https://mitpress.mit.edu/9780262072755/heuristics-and-the-law/">brain automatically generates intuitions about justice</a> when there is even the potential for conflict, long before you set foot in court. People, <a href="https://doi.org/10.2307/1128983">even young children</a>, have strong feelings about what counts as a wrongful action and <a href="https://doi.org/10.1073/pnas.1110306108">how much punishment a wrongdoer deserves</a>.</p>
<p>These justice intuitions come naturally to everyone. They’re like human lungs or human retinas – part of being human. </p>
<p>So maybe the standard-issue human brain forms the basis of formal and informal justice. If so, a distinctive prediction follows: Laypeople will make decent lawmakers using their sense of justice even when they have no training in law. Further, laypeople will be able to intuitively recreate core features of actual criminal laws from cultures they are totally unfamiliar with.</p>
<p>We devised a study to test those predictions. We showed participants various offenses drawn from actual criminal codes but not the punishments that the law establishes for those offenses.</p>
<p><iframe id="zIAwq" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/zIAwq/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Some of the offenses we presented came from a modern and culturally familiar society, drawn from Title 18 of the <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/18.HTM">Consolidated Pennsylvania Statutes</a>. But other offenses were truly ancient and culturally foreign. Some participants evaluated offenses <a href="https://cart.sbl-site.org/books/061506P">from the Laws of Eshnunna</a>, a 3,800-year-old Mesopotamian legal code – one of humanity’s most ancient legal codes. Other participants saw offenses from the <a href="https://press.princeton.edu/books/hardcover/9780691636320/the-tang-code-volume-ii">Tang Code, a 1,400-year-old legal code from China</a>.</p>
<p>These archaic laws are the next best thing to time travel. They are like fossils that preserve the legal thinking of ancient lawmakers.</p>
<p>To give some examples, some of the Eshnunna offenses shown to participants included: biting out the eye of another man, seizing a boat fraudulently and failing to keep one’s aggressive ox in check, resulting in a slave being killed by the ox. Such were the offenses of an ancient Mesopotamian society.</p>
<p>Despite the massive cultural differences between the ancient city-state of Eshnunna and modern societies, if the sense of justice, and laws, originates in the human brain, then the king who decreed the Laws of Eshnunna and the participants in the study may be of one mind.</p>
<p>So next we asked participants to rate each of the offenses they saw. Some participants were asked to imagine they were lawmakers; they were asked to mock-legislate the fines each offense would deserve by law. Other participants mock-legislated prison sentences for each offense. To make sure participants were giving their untrained intuitions, we excluded from analyses participants who attended law school. </p>
<p>Indeed, the Eshnunna king and the participants in our study did display a shared sense of justice. The more study participants judged an ancient offense as serious, the higher the actual punishment provided by law for that offense.</p>
<p>This match between participants’ intuitions and ancient laws wasn’t perfect, but it was substantial. It suggests that human beings share a sense of justice and that people today can recreate the core of criminal laws from faraway societies that are thousands of years in the past.</p>
<h2>Cultural effects on the sense of justice</h2>
<p>A shared sense of justice that is part of human nature does not deny cultural differences. </p>
<p>Consider this Tang offense: “All cases of a master who kills a slave who has not committed an offense are punished by one year of penal servitude (NB: redeemable by paying a fine of 20 copper chin).” The Tang Code considers this offense to be relatively mild – consider, for example, that “beating and killing a person in an affray” was punished by the Tang Code with strangulation or a fine of 120 copper chin. In contrast, study participants judged “killing a slave who has not committed an offense” a very serious transgression.</p>
<p>And yet, participants’ intuitive responses generally matched the responses called for in the ancient criminal codes. For instance, participants agreed with the Tang lawmakers that beating and killing a person in a fight is a worse offense than betting goods and articles in games of chance.</p>
<p>To us, this mix of cross-cultural differences and similarities suggests that the brain machinery that generates the sense of justice combines universal principles with open parameters that are filled in with local information. The universal principles may explain why participants generally saw eye to eye with the Eshnunna king and the Tang lawmakers. The open parameters may explain cultural variation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="two bighorn sheep butt heads" src="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People, animals, even very simple organisms can be in conflict.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bighorn-sheep-rams-in-rut-butting-heads-royalty-free-image/1057145660">Stan Tekiela Author/Naturalist/Wildlife Photographer/Moment via Getty Images</a></span>
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</figure>
<h2>Evolutionary roots of a sense of justice</h2>
<p>Conflict is evolutionarily ancient. Organisms, including nonhuman animals, can offend against others – for example, by preying on them. And so natural selection would have endowed organisms with means that help them solve conflicts in their favor: fangs, antlers, neurotoxic venoms. These defenses and weapons are useful. Our ancestors lived in a world without police, and so they had to be their own police if they were to survive and thrive.</p>
<p>But human conflict is special. With their ingenuity and knack for cooperation, people can produce a huge array of goods and services that other people can swindle, rob, adulterate, counterfeit, embezzle and destroy. So the scope of human conflict is vast. </p>
<p>Brawn may help in human conflict, but brain is key. Humans live in an information-dense world, where it’s important to know precisely how much harm is being done to you when someone offends against you. Accurately appraising wrongs allows victims to demand or deliver an amount of punishment that is, as in the story of Goldilocks, just right: neither too small that an undeterred offender will re-offend, nor too great that the offender will counter-punish the original victim. Our human ancestors didn’t have price tags or written laws to appraise wrongful actions, so they needed to appraise wrongful actions with their brains.</p>
<p>The brain mechanisms for appraising wrongdoing appear to be part of human nature – the same in all times and places humans have lived in. Of course, justice intuitions and criminal laws vary across cultures. Grand theft auto wasn’t appraised in Sparta because there were no cars 2,500 years ago. Written criminal laws are absent in societies without writing systems.</p>
<p>Nevertheless, the <a href="https://doi.org/10.1016/S0047-2352(02)00198-8">human sense of justice</a> <a href="https://doi.org/10.1073/pnas.1911517117">seems to be fundamentally similar across space and time</a>. And criminal laws everywhere may be shaped by a sense of justice and offense-appraising mechanisms that are universal – akin to how <a href="https://doi.org/10.3945/ajcn.2009.27462B">universal mechanisms of taste perception</a> give rise to the world’s diverse cuisines.</p><img src="https://counter.theconversation.com/content/190523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Sznycer received funding from Fonds de recherche du Québec and Quebec Bio-Imaging Network </span></em></p><p class="fine-print"><em><span>Carlton Patrick does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What people consider to be fair and just today are in line with the laws of ancient Mesopotamia and the Tang Dynasty in China – suggesting that these intuitions are part of human nature.Daniel Sznycer, Assistant Professor of Psychology, Oklahoma State UniversityCarlton Patrick, Assistant Professor of Legal Studies, University of Central FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1896252022-08-30T08:28:50Z2022-08-30T08:28:50Z‘A clear victory for dogged investigative journalism’: Chris Dawson found guilty of murdering wife Lynette in 1982<p>In December 2018, former professional rugby league player and high school teacher Chris Dawson, then aged 70, was arrested and charged with murdering his wife Lynette almost forty years previously.</p>
<p>Today, in the Supreme Court of New South Wales, Justice Ian Harrison declared: “I am satisfied beyond reasonable doubt that the only rational inference (is that) Lynette Dawson died on or about 8 January 1982 as a result of a conscious or voluntary act committed by Christopher Dawson”.</p>
<p>Thus he found Dawson guilty of her murder. Dawson has now had his bail revoked and has been remanded in custody pending sentence.</p>
<p>How did we get here?</p>
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<h2>Beyond reasonable doubt</h2>
<p>Lynette Dawson had gone missing from her home at Bayview in Sydney’s northern beaches between January 8 and 9, 1982. Soon thereafter Chris Dawson reported the disappearance to police.</p>
<p>He thereafter moved his teenage lover, referred to in the trial as “JC”, into his home. They later married. </p>
<p>After an acrimonious divorce, JC went to police and said she believed her former husband had murdered Lynette. A police investigation began, and JC was to become a key witness against him.</p>
<p>Justice Harrison presided over the trial <a href="https://www.abc.net.au/news/2022-05-02/chris-dawson-to-face-judge-alone-murder-trial/101031408">without the benefit of a jury</a> because of a perception that the publicity in the lead up to Dawson being charged was so prejudicial that a jury could not have been able to exercise their fact-finding without bias.</p>
<p>The prosecution case was that Dawson murdered Lynette so he could have an “unfettered” relationship with JC whom he had met when she was a year 11 student. </p>
<p>Dawson’s defence counsel, Pauline David, argued, to the contrary, that there was no weapon, and nor was there any forensic or scientific evidence of any murder. She questioned how the accused could have killed his wife and carried her body out to his car when the car was parked outside.</p>
<p>Defence arguments are always designed to raise doubts. In this case they failed. Justice Harrison said he was persuaded beyond reasonable doubt that the prosecution had made out their case.</p>
<p>Dawson has always maintained he was not involved with Lynette’s disappearance. Her body has never been found.</p>
<h2>The Teacher’s Pet</h2>
<p>What makes this case so interesting is that a journalist with The Australian, Hedley Thomas, had engaged in his own fact-finding exercise.</p>
<p>He was scathing of the police investigation. He published a podcast, <a href="https://podcasts.apple.com/au/podcast/the-teachers-pet/id1385379989">The Teacher’s Pet</a>, which was broadcast between May and December 2018. It reached an estimated audience of <a href="https://www.abc.net.au/news/2022-06-27/chris-dawson-murder-trial-teachers-pet-hedley-thomas/101186612">60 million listeners</a> in which Thomas presented evidence that he maintained pointed clearly to Dawson’s guilt.</p>
<p>The podcast was taken offline in 2019 to avoid prejudicing the trial and influencing potential prosecution witnesses.</p>
<p>Notwithstanding, Dawson’s defence team attempted, unsuccessfully as it turned out, to get a permanent “stay of proceedings” (meaning the prosecution is halted in its tracks) on the basis that the podcast was so prejudicial that their client would not be able to get a fair trial. </p>
<p>Indeed, Thomas had been criticised for his extrajudicial enthusiasm, but Justice Elizabeth Fullerton, who heard the application to stay proceedings, was unmoved by the defence team’s pleading. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1564493204912996352"}"></div></p>
<p>There are two other extraordinary features of this case. The first is that unedited conversations that Thomas had recorded were used as evidence in the trial, notwithstanding that the persons who were being interviewed would not have received the usual formal warnings concerning the use to which those interviews may later have been put.</p>
<p>Second, the trial judge heard that former NSW Police Commissioner Mick Fuller had directed senior investigating police to <a href="https://www.smh.com.au/national/nsw/the-top-cop-the-journalist-and-the-lunch-that-nearly-halted-a-murder-trial-20220608-p5as6d.html">join Thomas for lunch</a> at a Surry Hills restaurant before Dawson was charged. While such a conversation is not damning of a prosecution case, it can be frowned upon for police to engage in familial interviews with persons who have had no direct evidence of the matters at hand and who have formed their own conclusions concerning guilt and innocence.</p>
<p>It’s not uncommon for a journalist to go into bat for a person whom he or she thinks has been wrongly convicted. One of the more <a href="https://medium.com/the-walkley-magazine/sentenced-to-silence-1d7f3e11fac0">celebrated cases</a> involved the conviction of Edward Splatt for the murder in Adelaide of Rosa Simper in 1977. The fearless case mounted by Stewart Cockburn in publishing a series of articles in May 1981 led to a Royal Commission and, finally, Splatt’s exoneration after he had spent more than six years behind bars.</p>
<p>But it’s highly unusual for a journalist to pursue someone he thinks has been involved in foul play, and to do so by publishing a popular podcast that presents a particular view of the facts in dispute. As he and his editors knew, the podcast would stray perilously close to being so prejudicial as to prevent the trial ever proceeding.</p>
<p>That being said, the trial verdict is one that will give Hedley Thomas enormous gratification, and is a clear victory for dogged investigative journalism.</p>
<p>But watch this space – Dawson’s lawyers have flagged an <a href="https://www.abc.net.au/news/2022-08-30/chris-dawson-verdict-live-blog/101385054">appeal</a>.</p><img src="https://counter.theconversation.com/content/189625/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is affiliated with the SA Labor Party and the SA Council for Civil Liberties.</span></em></p>It’s highly unusual for a journalist to pursue someone he thinks has been involved in foul play by publishing a popular podcast. But the trial verdict will give Hedley Thomas enormous gratification.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1878162022-07-27T18:31:12Z2022-07-27T18:31:12ZHow do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020 election<figure><img src="https://images.theconversation.com/files/476340/original/file-20220727-25-kj5r0k.jpeg?ixlib=rb-1.1.0&rect=15%2C30%2C5116%2C3647&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marc Short, former Vice President Mike Pence's chief of staff, testified in late July before a federal grand jury investigating the Jan. 6, 2021, assault on the U.S. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotPenceAide/aa1d4f3823a14054abbd910df622ebd9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>Grand juries play a major role in the U.S. criminal justice system. And they’re very much in the news these days.</p>
<p><a href="https://abcnews.go.com/US/georgia-governor-testimony-fulton-county-election-probe-report/story?id=87425868">A grand jury in Fulton County, Georgia</a>, is looking into former President Donald Trump’s efforts to overturn the 2020 presidential election results in that state. Among the latest witnesses to give testimony to the grand jury was Georgia Gov. Brian Kemp.</p>
<p>In Washington, D.C., the U.S. Justice Department is in the middle of an <a href="https://www.washingtonpost.com/national-security/2022/07/26/trump-justice-investigation-january-6/">investigation into efforts to overturn the 2020 election</a>, and it is questioning witnesses before a grand jury as well. Most recently, <a href="https://www.wsj.com/articles/justice-department-questions-top-pence-aides-over-trump-bid-to-overturn-election-11658783628">two top aides to former Vice President Mike Pence were questioned</a> in that probe. </p>
<p>A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into <a href="http://www.judicialwatch.org/press-room/press-releases/judicial-watch-fbi-court-filing-reveals-grand-jury-targeted-hillary-clinton/">Hillary Clinton’s email server</a>, for example, but no one was charged with any crimes. </p>
<p>In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.</p>
<h2>Legal basis: Federal and state</h2>
<p>The <a href="http://constitution.findlaw.com/amendment5.html">Fifth Amendment to the U.S. Constitution</a> provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment. </p>
<p>In addition to considering whether individuals may have committed a crime, <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury">a grand jury can also be used by a prosecutor as an investigative tool</a> to compel witnesses to testify or turn over documents. <a href="https://www.washingtonpost.com/politics/special-counsel-mueller-using-grand-jury-in-federal-court-in-washington-as-part-of-russia-investigation/2017/08/03/1585da56-7887-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0041dedbde14">Reports</a> indicate that Special Counsel Robert Mueller used a grand jury for the latter when he investigated whether there was collusion between former President Donald Trump’s election campaign and Russia to influence the 2016 election.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in judge's robes sitting at a large desk, with the state seal of Georgia on the wall behind him." src="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County Superior Court Judge Robert McBurney instructs potential jurors during proceedings to seat a special purpose grand jury in Fulton County, Georgia, May 2, 2022, to look into attempts to overturn the results of the 2020 election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/bd5b51f1f655406fa6b62ebfd189e0e9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=7">AP Photo/Ben Gray</a></span>
</figcaption>
</figure>
<h2>Makeup of a grand jury</h2>
<p>Grand jurors are usually chosen from the same jury pool as trial jurors. For a <a href="https://www.flmd.uscourts.gov/sites/flmd/files/documents/handbook-for-federal-grand-jurors.pdf">federal grand jury</a>, all U.S. citizens over the age of 18 living in the federal district court’s geographic jurisdiction are in the pool. </p>
<p>Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.</p>
<p>Next, prospective grand jurors are screened, usually through questionnaires. </p>
<p>To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.</p>
<h2>Work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. </p>
<p>In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a <a href="https://ago.mo.gov/docs/default-source/publications/courtprocess.pdf?sfvrsn=4">grand jury or at a preliminary hearing</a> before a judge. </p>
<p>When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson in 2014, the St. Louis County prosecuting attorney brought the <a href="https://theconversation.com/explainer-the-grand-jury-in-the-darren-wilson-case-and-beyond-34857">evidence to a grand jury</a> rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.</p>
<p>Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.</p>
<p>In some cases, like Mueller’s Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses. </p>
<p>Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">The work of a grand jury is required by law to be done in secret</a>, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=487&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=487&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=487&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=612&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=612&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=612&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Clinton in videotaped grand jury testimony Aug. 17, 1998.</span>
<span class="attribution"><span class="source">AP Photo/APTV</span></span>
</figcaption>
</figure>
<p>In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when former President Bill Clinton testified before a grand jury during the investigation into Whitewater real estate investment and the affair with Monica Lewinsky, <a href="http://www.history.com/this-day-in-history/clinton-testifies-before-grand-jury">he went on national television</a> and announced that he had testified.</p>
<h2>Potential dangers</h2>
<p>The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present, and cannot question the evidence early in the criminal justice process. </p>
<p>As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, <a href="http://www.nytimes.com/1985/02/18/opinion/do-we-need-grand-juries.html">famously said</a> that a prosecutor could get a grand jury “to indict a ham sandwich.” </p>
<p>These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But in high-profile cases, like the Russia connection to the Trump presidency and possibly the current investigation into Trump’s efforts to overturn the election results in Georgia, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/the-grand-jurys-role-in-american-criminal-justice-explained-82197">a story originally published</a> on Aug. 7, 2017.</em></p><img src="https://counter.theconversation.com/content/187816/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Grand juries are meeting in Georgia and Washington, D.C., as part of investigations into attempts to overturn the 2020 presidential election. How do they work?Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1845922022-06-09T17:46:01Z2022-06-09T17:46:01ZRegardless of seditious conspiracy charges’ outcome, right-wing groups like Proud Boys seek to build a white nation<figure><img src="https://images.theconversation.com/files/467831/original/file-20220608-25-wb8uxx.jpg?ixlib=rb-1.1.0&rect=45%2C0%2C5083%2C3378&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the Oath Keepers stand at the east front of the U.S. Capitol on Jan. 6, 2021.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolBreachJan6Lawsuit/dc35ae1cd6ba47e0a48ac92ba8017205/photo">AP Photo/Manuel Balce Ceneta</a></span></figcaption></figure><p>As the House Select Committee held its first public hearing on the Jan. 6, 2021, insurrection, far-right groups including the <a href="https://www.ucpress.edu/book/9780520300453/alt-right-gangs">Proud Boys</a> and the <a href="https://cup.columbia.edu/book/oath-keepers/9780231193450">Oath Keepers</a> <a href="https://www.nytimes.com/2022/06/07/us/politics/jan-6-hearings-tv-democrats.html">were a prominent topic of discussion</a>.</p>
<p>At the same time, both of those groups’ <a href="https://www.nytimes.com/2022/06/06/us/politics/proud-boys-charged-sedition-capitol-attack.html">leaders</a> are facing <a href="https://www.washingtonpost.com/dc-md-va/2022/06/06/tarrio-proud-boys-seditious-conpiracy/">criminal charges</a> of <a href="https://www.nytimes.com/2022/01/13/us/politics/oath-keepers-stewart-rhodes.html">seditious conspiracy</a>. They are alleged to have worked together “<a href="https://www.documentcloud.org/documents/22053617-tarrio-et-al-superseding-indictment">to oppose by force the authority</a> of the Government of the United States.”</p>
<p>Those charges can be difficult to prove in court. But regardless of the outcome of any prosecution that alleges these groups worked to overthrow the government, <a href="https://scholar.google.com/citations?user=fjys1XAAAAAJ&hl=en">our</a> <a href="https://scholar.google.com/citations?user=cLpO6QwAAAAJ&hl=en&oi=ao">research</a> has shown that the more committed members of these and other <a href="https://www.wiley.com/en-us/The+Far+Right+Today-p-9781509536856">extreme right-wing groups</a> believe that the U.S. government, as currently constituted, is illegitimate and should be overthrown and replaced with one that is based on white supremacy.</p>
<h2>Violent racism</h2>
<p>Proud Boys have identified themselves as “<a href="https://www.seattletimes.com/seattle-news/law-justice/proud-boys-leader-from-wa-faces-sedition-charge-in-u-s-capitol-insurrection/">Western chauvinists</a>” who focus on opposing political correctness and white guilt. But these claims have generally been seen as <a href="https://www.splcenter.org/fighting-hate/extremist-files/group/proud-boys">cover for deeper racist and antisemitic sentiments</a>. For some Proud Boys members, this group was a steppingstone to more <a href="https://www.rollingstone.com/culture/culture-features/proud-boys-far-right-group-1183966/">extreme groups, such as The Base</a>.</p>
<p>Like any <a href="https://doi.org/10.1080/13676261.2018.1467003">street gang</a>, the Proud Boys as a national group is made up of semi-autonomous chapters of varying numbers and abilities. They are in different degrees of contact and coordination with other chapters. It’s not clear the level of interest – or capability – that most members have in actually following through with overthrowing the government.</p>
<p>Oath Keepers is an anti-government group that calls itself a “<a href="https://cup.columbia.edu/book/oath-keepers/9780231193450">militia</a>” focused on <a href="https://www.splcenter.org/fighting-hate/extremist-files/group/oath-keepers">defending the Constitution and fighting tyranny</a>. Former Oath Keepers spokesman Jason Van Tatenhove stated that the group is actually “<a href="https://abcnews.go.com/US/oath-keepers-spokesperson-warns-wing-propaganda-dangerous-bullets/story?id=82094999">selling the revolution</a>,” meaning that the group is pushing conspiracy theories and propaganda to facilitate confrontations with federal law enforcement.</p>
<p>While members of the <a href="https://ctc.westpoint.edu/pride-prejudice-the-violent-evolution-of-the-proud-boys/">Proud Boys</a> have concentrated their confrontations on <a href="https://theconversation.com/what-or-who-is-antifa-140147">anti-fascists</a> or other protesters, Oath Keepers have participated in several armed standoffs against the government. </p>
<p>In 2014, the <a href="https://abcnews.go.com/US/standoff-nevada-years-ago-set-militia-movement-crash/story?id=82051940">Oath Keepers joined an armed standoff</a> between far-right patriot groups in Nevada on behalf of <a href="https://www.npr.org/podcasts/606441988/bundyville">Cliven Bundy</a>. In 2015, Oath Keepers showed up heavily armed in Ferguson, Missouri, during protests over the killing of <a href="https://www.rollingstone.com/culture/culture-news/the-oath-keeper-who-wants-to-arm-black-lives-matter-59109/">Michael Brown</a>. And in 2016, Oath Keepers were present at the armed takeover of the <a href="https://www.vox.com/policy-and-politics/2016/11/7/13489640/oath-keepers-donald-trump-voter-fraud-intimidation-rigged">Malheur National Wildlife Refuge</a> in Oregon.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd, including a person carrying a megaphone." src="https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467833/original/file-20220608-25-2k5nof.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the Proud Boys, along with others, march toward the U.S. Capitol on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolBreachProudBoys/9e3a1ebb87a34cc394b34446e00ab3f0/photo">AP Photo/Carolyn Kaster</a></span>
</figcaption>
</figure>
<h2>A challenging road</h2>
<p>Historically, prosecutions of seditious conspiracy charges succeeded against <a href="https://www.washingtonpost.com/archive/politics/1995/10/02/sheik-9-others-convicted-in-ny-bomb/5bd7099a-f960-4d32-b02d-8165302dd594/">militant Islamist</a> or <a href="https://www.nytimes.com/1989/01/12/us/after-9-months-of-delays-us-tries-3-for-sedition.html">Marxist groups</a>.</p>
<p>But prosecuting far-right groups has tended to be much more difficult. In 1988, <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674286078">Louis Beam, a figurehead in the white power movement</a>, and 13 white supremacists from groups such as the Aryan Brotherhood and the Ku Klux Klan were <a href="https://apnews.com/article/604c50e36bd020ac70be35445b12d059">acquitted</a> of conspiring to kill a federal judge and an FBI agent and plotting to overthrow the federal government to establish an all-white nation in the Pacific Northwest.</p>
<p>In 2012, charges of seditious conspiracy against members of <a href="https://www.npr.org/2010/04/12/125856761/how-the-fbi-got-inside-the-hutaree-militia">Hutaree</a>, a militant far-right <a href="https://theconversation.com/the-capitol-siege-recalls-past-acts-of-christian-nationalist-violence-153059">Christian nationalist</a> group, were <a href="https://www.reuters.com/article/us-usa-security-hutaree/three-hutaree-militia-members-sentenced-in-detroit-to-time-served-idUSBRE8770ZQ20120808">dismissed</a> after the judge concluded the government had not proved there was an actual conspiracy.</p>
<p>But it is clear from the charges stemming from the Jan. 6 insurrection – involving <a href="https://apnews.com/article/capitol-siege-merrick-garland-government-and-politics-conspiracy-crime-c2e427dc0fa16077d7fb98c06e61149f">hundreds of alleged participants</a> – that police and prosecutors are <a href="https://contexts.org/articles/why-law-enforcement-needs-to-classify-far-right-groups-as-gangs/">taking seriously the threat of violent action</a> by <a href="https://www.start.umd.edu/publication/extremist-groupmovement-affiliations-january-6-capitol-rioters">Proud Boys, Oath Keepers and other far-right groups</a> against individuals, organizations and local and national governments.</p><img src="https://counter.theconversation.com/content/184592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>White supremacist groups seek to solidify their control over the US by changing the government, sometimes by violence.Matthew Valasik, Associate Professor of Criminology and Criminal Justice, University of AlabamaShannon Reid, Associate Professor of Criminal Justice and Criminology, University of North Carolina – CharlotteLicensed as Creative Commons – attribution, no derivatives.