Criminal Law and Procedure • Et. Seq: The Harvard Law School Library Blog

AALL Conference; Lex Baioariorum – Law of Bavaria

I will be joining several of my colleagues at the annual American Association of Law Libraries (AALL) conference in Baltimore this year, which begins on Sunday.  I missed last year’s conference, so I am really looking forward to connecting with my law library colleagues from all over the country.  I’ll be posting about a few of the conference programs on the DipLawMatic Dialogues blog, which is maintained by AALL’s Foreign, Comparative, and International Law Special Interest Section (FCIL-SIS).

Before heading out to the conference, I wanted to write a quick post about a fascinating little book related to Bavarian historical law that I found in our collection recently:

Lex Baioariorum: Das Recht der Bayern
Roman Deutinger (Ed.), 2017
http://id.lib.harvard.edu/alma/990150173540203941/catalog 

This is a bilingual Latin-German version of the Lex Baioariorum, which is the law that was in place in Bavaria during the early middle ages. As my Latin is a little, well, insufficient to get through a text like this, I am so grateful that Dr. Deutinger took the time to translate and publish this book.

This code is divided into 23 subjects, and has a total of 270 chapters.  Its content includes “regulations for every possible aspect of human co-existence and the conflicts that could arise within it” (“Regelungen zu allen möglichen Bereichen des menschlichen Zusammenlebens und zu den Konflikten, die sich dabei ergeben können”) – everything from religious institutions and family relationships to personal injuries, criminal offenses, and the ownership of property.

Within the code, there are separate sanctions defined for offenses against “free people, liberated people, and slaves.”  Penalties are defined in great detail.  For example, hitting a free person on the nose results in a penalty of nine Schillings, whereas a strike to a free person’s ear meant only a three-Schilling penalty.  The latter was one of a host of penalties related to the ears of free people: cutting off a free person’s ear meant a 20-Schilling fine, but that penalty was doubled to 40 Schillings if the action resulted in an injury severe enough to render the person deaf.  If, however, you committed a similar action that resulted in a slave’s deafness, the fine was only four Schillings.

I spent my recent professional development leave at a university in what is today the German state of Bavaria, which is a beautiful area full of castles that has interesting and rich history and traditions.  Unfortunately, I was not able to take a course on the legal history in Bavaria, which is a shame because I think I would have enjoyed it a lot.

In any event, I hope to explore our library’s resources related to Germany’s legal history in more detail in future posts.

The Law and Police Searches

I recently returned from a leave of absence from the library. During my leave, I was fortunate to teach a US Criminal Law and Procedure course at the University of Würzburg in Germany.  Criminal Procedure was one of my favorite classes in law school, and I relished the opportunity to talk about the Fourth Amendment with German law students for an entire semester.

The language of the Fourth Amendment is, perhaps, as broad as it is on purpose:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This, of course, is where we started the semester – we spent a whole class session exploring what the students thought words like “secure” and “persons” and “search” and “unreasonable” should and do mean.  Then, we spent the rest of the course digging through the American case law on the topic, in which the courts have provided definitions of those legal terms of art.  We read and discussed some of the U.S. Supreme Court’s seminal cases on Fourth Amendment searches: Terry, Mapp, Kyllo, Stoner, and Chambers.  We also looked briefly at many cases in which U.S. courts have carved out exceptions to the requirement that the police get a warrant before conducting a search.

I was SO impressed by the German students during this course!  Germany has a civil law tradition, which means that, aside from opinions issued by the country’s Federal Constitutional Court, German judicial decisions are not viewed as binding legal precedent.  This means that German law students spend most of law school studying statutory codes, not reading cases, let alone cases in a foreign language.  But they were up for every challenge, and we had enough time left over at the end of the course that I could throw in a class dedicated to Miranda.

Week after week, we kept coming back to the use of the exclusionary rule, which states that evidence that was seized by the police in violation of the defendant’s Fourth Amendment rights cannot be used against the defendant at his or her criminal trial.

One case we discussed, U.S. v. Nora, 765 F.3d 1049 (9th Cir. 2014), had a particular impact.  In the home in which a criminal suspect lived with his wife and kids (!), the police conducted a warrantless search and seized the following:

Narcotics: cocaine, cocaine base, marijuana, heroin, and methamphetamine, hidden in drawers and behind the refrigerator.

Weapons: six handguns, one rifle, and two shotguns (all with ammunition), hidden in a closet and in the garage.

The search was ruled to be unconstitutional, which meant that, under the mandatory application of the exclusionary rule, the evidence could not be used against the defendant in his criminal trial.

In the face of a case with these facts, is it even possible that the exclusionary rule is a good idea?

Supreme Court Justice Clarence Thomas perhaps doesn’t think so.  Earlier this week, the Supreme Court issued an opinion in the case of Collins v. Virginia, in which a warrantless search of the defendant’s driveway led to the seizure of a stolen motorcycle.  In an 8-1 decision, the Court held that searching a driveway, which is to be considered as part of the curtilage of the defendant’s residence, without a warrant or an applicable search warrant exception, violated the suspect’s Fourth Amendment rights.

Justice Thomas agreed with the Court’s holding, but wrote separately to express his doubt about the validity of the mandatory application of the exclusionary rule.  ScotusBlog described Justice Thomas’s opinion as follows:

“Justice Clarence Thomas wrote a separate opinion in which he agreed with the majority’s resolution of the Fourth Amendment question. But Thomas stressed that the case was before the justices because, if Collins is correct and his Fourth Amendment rights were violated, the state courts would have to apply the exclusionary rule, which prohibits the government from using evidence obtained in violation of the Constitution, and “potentially suppress the incriminating evidence against him.” Thomas expressed “serious doubts” about the Supreme Court’s authority to require states to follow the exclusionary rule, which is “not rooted in the Constitution or a federal statute,” and he urged the court to take up that question.”

(http://www.scotusblog.com/2018/05/opinion-analysis-justices-decline-to-extend-fourth-amendments-automobile-exception/)

Overall, after talking about it every week for the whole semester, the German students in the course came out in favor of the exclusionary rule as an important check on the power of the police, although they were, at times, disappointed in its mandatory application.  The course also made them think a lot more carefully about police procedure in their own country, and about the idea that the separation of powers provides important checks and balances in a legal system (here, the judicial branch checks the executive branch).

If you’re interested in reading more about this topic, the Harvard Library collections have some recent books you might want to explore:

The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy, by Michael Gizzi and R. Craig Curtis (University Press of Kansas, 2016)

The Fourth Amendment: Origins and Original Meaning, by William J. Cuddihy (Oxford University Press, 2016)

Police: A Field Guide, by Davide Correia and Tyler Wall (Verso, 2018)

The Unexpected Scalia: A Conservative Justice’s Liberal Opinions, by David M. Dorsen (Cambridge University Press, 2017)

Written Out of History: The Forgotten Founders Who Fought Big Government, by Mike Lee (Sentinel, 2017).

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