Thursday, September 8th, 2022

Three Interesting Cert. Petitions

Our friends at recently discussed three pending cert. petitions that present important and interesting criminal issues. Because these issues may arise in your practice, I note them again here so that you can preserve them for review:

  1. Shaw v. United States, No. 22-118.

Issues:  (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.

  1. Ruiz v. Massachusetts, No. 22-132.

Issue: Whether the Fifth and Fourteenth Amendments forbid judges (or prosecutors) from instructing (or inviting) the jury to take into account a non-testifying criminal defendant’s courtroom demeanor as a basis for finding guilt.

  1. Counterman v. Colorado, No. 22-138.

Issue: Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

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